Constituted Attorney Authorized Signatory v. Smt. Shashi Kanwar W/o Late Sh. Rajendra Singh, Aged

Judgment

1. Smt. Shashi Kanwar W/o Late Sh. Rajendra Singh, Aged About 32 Years, B/c Rajput R/o Vill. Mirjapur Post Shahjahanpur Teh. Mandawar Dist. Alwar At Present Residing At B-277 Paldi Meena Jda Colony Agra Road Jaipur

2. Ku. Meenu D/o Late Sh. Rajendra Singh, Aged About 12

Years, Minor Through Their Natural Guardian Mother Smt. Shashi Kanwar R/o Vill. Mirjapur Post Shahjahanpur Teh. Mandawar Dist. Alwar At Present Residing At B-277 Paldi Meena Jda Colony Agra Road Jaipur

3. Master Uttam Singh S/o Late Sh. Rajendra Singh, Aged About 1 Years, Minor Through Their Natural Guardian Mother Smt. Shashi Kanwar R/o Vill. Mirjapur Post Shahjahanpur Teh. Mandawar Dist. Alwar At Present Residing At B-277 Paldi Meena Jda Colony Agra Road Jaipur

4. Hatti Singh S/o Late Shri Chaju Singh, Aged About 58 Years, R/o Vill. Mirjapur Post Shahjahanpur Teh. Mandawar Dist. Alwar At Present Residing At B-277 Paldi Meena Jda Colony Agra Road Jaipur

5. Smt. Gulab Kanwar W/o Shri Hatti Singh, Aged About 55 Years, R/o Vill. Mirjapur Post Shahjahanpur Teh. Mandawar Dist. Alwar At Present Residing At B-277 Paldi Meena Jda Colony Agra Road Jaipur

6. Gautam Kumar Mishra S/o Sh. Subhash Chand Mishra, R/o 13/82 Panditan Near Mahadev Mandir Fafamau Dist. Allahabad (Driver Of Tankar No Hr 29-Ga-0283) [2025:RJ-JP:7667] (2 of 7) [CRES-86/2019]

7. M/s J.s. Continental Ltd. Through Manager, R/o A/3/4 Pashim Vihar New Delhi At Present 521 Chawla Colony Ballabhgarh Faridabad (Registered Owner Of Tankar No Hr 29-Ga-0283)

8. Padam Singh Meena S/o Shri Modya Meena, R/o R.s.r.t.c. Hindaun City Dist. Karauli (Driver Of Bus No Rj 34-P- 0616)

9. Rajasthan State Road Transport Corporation Through Managing Director, Parivahan Marg Jaipur (Owner Of Bus No Rj 34-P-0616) ----Respondents For Petitioner(s) : Mr. Akshat Sharma for Mr. Sandeep Pathak For Respondent(s) : Mr. Vinay Mathur HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 19/02/2025 Order

1. Instant restoration application is preferred by appellant non- claimant to restore S.B. CMA No. 1018/13 dismissed on

31.01.2018 for non-compliance of order dated 19.09.2017.

2. Office has pointed out a delay of 366 days and to substantiate the reasons of delay an application under Section 5 of Limitation Act is filed.

3. Learned counsel for appellant submits that appellant- Insurance Company has challenged the award dated 07.12.2012 in claim case No. 87/2011 (398/2007) passed by learned MACT (ADJ) No.9, Jaipur Metro but due to non-compliance of order, C.M.A. was dismissed by this Court. He submits that he undertakes to comply the order immediately. He also submits that the appellant-Insurance Company was not aware about [2025:RJ-JP:7667] (3 of 7) [CRES-86/2019] unintentional mistake committed by Clerk of lawyer, therefore, the appeal is required to be restored.

4. Aforesaid contentions were opposed by learned counsel for respondent Nos. 1 to 5 and he submits that aggrieved from order dated 07.12.2012, the claimants have also preferred an appeal for enhancement and same was partially allowed on 21.01.2019, therefore, the restoration application cannot be allowed to restore S.B. C.M.A. which was already dismissed. He also submits that a contradictory order cannot be passed in C.M.A. No. 1018/2013.

5. Considered submission of learned counsels for the parties and perused the entire record.

6. On 19.09.2017, when S.B. CMA No. 1018/13 was listed then one week’s time was granted to appellant-Insurance Company to file notice, but in case of non-compliance a direction was also issued that the matter be dismissed without reference to the Court. On 31.01.2018, due to non-compliance of per-emptory order, S.B. CMA No. 1018/13 was dismissed.

7. Dissatisfied from same award dated 07.12.2012 in MAC claim case No. 87/2011 (398/2007) passed by learned, ADJ No.9, (MACT), Jaipur Metro, a S.B. CMA No. 1415/2013 was also filed by the claimants for enhancement in light of judgment in case of National Insurance Company Limited Vs. Pranay Sethi and Ors. AIR 2017 SC 5157.

8. A Co-ordinate Bench while considering S.B. CMA No. 1415/2013 has enhanced the compensation. After disposal of S.B. CMA No. 1415/2013 on 21.01.2019, instant restoration application is filed on 03.03.2019. It indicates that only after disposal of another C.M.A., the appellant has filed restoration application. [2025:RJ-JP:7667] (4 of 7) [CRES-86/2019] Herein, the reasons assigned to condone delay is also not convincing. When an order has been passed for taking steps for service upon unserved respondent(s) and same is not complied then the appellant-applicant is only responsible for dismissal of misc. appeal. The delay occasioned in filing restoration application is not explained properly and the reasons assigned is not sufficient. 9. Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring an appeal or revision or making an application within prescribed period.

10. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. [2025:RJ-JP:7667] (5 of 7) [CRES-86/2019]

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

11. In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Hon’ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of Hon’ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially [2025:RJ-JP:7667] (6 of 7) [CRES-86/2019] satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay.

12. In the case of Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291, while referring the judgment of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors.: (2013) 12 SCC 649, Hon'ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. The Supreme Court further observed that the Court cannot condone the delay, if it is not properly, satisfactorily and convincingly explained, and a delay cannot be condoned on sympathetic grounds.

13. Very recently condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 wherein also it was held that unless sufficient cause is shown the application under Section 5 of Limitation Act cannot be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following manner:- (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; have to (iii) The provisions of the L imitation Act be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, justice-oriented approach, though liberal [2025:RJ-JP:7667] (7 of 7) [CRES-86/2019] approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision.

14. Having considered aforesaid, the delay of 366 days is not sufficiently explained by the appellant-applicant, therefore, there is no ground to condone the delay. A connecting appeal has already been disposed of with enhanced award and there is no ground to restore S.B. CMA No. 1018/2013.

15. In view of aforesaid, the application under Section 5 of Limitation Act and also instant restoration application are hereby dismissed along with pending application(s), if any. MONU /44 (ASHOK KUMAR JAIN),J