Tikkiwalon Ka Rasta Chokri Topkhana Desh, Jaipur v. Bhumesh Kumar Sharma S/o Late Lalli Ram, Aged About

Judgment

1. Bhumesh Kumar Sharma S/o Late Lalli Ram, Aged About 41 Years, Resident Of House No. 1502, Bhenru Ji Ka Choraha, Tikkiwalon Ka Rasta, Chokri Topkhana, Jaipur

2. Prahlad Sharma S/o Late Lalli Ram, Aged About 53 Years, Resident Of House No. 1502 Bhenru Ji Ka Choraha, Tikkiwalon Ka Rasta, Chokri Topkhana, Jaipur

Smt. Kalavati Sharma W/o Bhumesh Sharma, Aged About 52 Years, Resident Of House No. 1502 Bhenru Ji Ka Choraha, Tikkiwalon Ka Rasta, Chokri Topkhana, Jaipur ----Respondents For Petitioner(s) : Mr. Mangal Chand Taylor For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 01/04/2025 Order [2025:RJ-JP:16514] (2 of 7) [CRES-1214/2024]

1. Instant restoration application is preferred by applicants- appellants to restore S.B. Civil Second Appeal No. 410/2018 dismissed on 03.03.2022 for non-prosecution.

2. Office has pointed out a delay of 928 days and to substantiate the reasons of delay, an application under Section 5 of Limitation Act is filed.

3. Learned counsel for applicants-appellants while relying upon the proceedings of 03.03.2022 has submitted that the case was listed in supplementary cause list, which was published on late night on 02.03.2022, so, he could not mark the case on

03.03.2022. As a result, he could not appear before Hon’ble Court on 03.03.2022, which resulted in dismissal of second appeal on non-prosecution. He further submitted that the case was dismissed in default, and as soon as he came to know about the case, he filed instant application.

4. A perusal of record indicate that S.B. Civil Second Appeal is preferred by appellant-defendant after dismissal of civil regular appeal No. 07/2013 by learned Additional District Judge, No.7, Jaipur Metro-II on 11.06.2018 affirming the judgment and decree dated 22.01.2013 in civil suit No. 126/2005 passed by learned Civil Judge (Junior Division), Jaipur Metro (West), Jaipur. A perusal of proceeding of S.B. Civil Second Appeal indicate that the matter was taken-up on 28.02.2022, even then no one was present on behalf of appellants and the matter was posted to 03.03.2022. On

03.03.2022, when the matter was taken up, again no one was present and ultimately the Civil Second Appeal was dismissed for non-prosecution. [2025:RJ-JP:16514] (3 of 7) [CRES-1214/2024]

5. Office has pointed out a delay of 928 days after deducting 30 days permissible under the law. No, doubt about it when the matter was listed in supplementary cause-list on 03.03.2022, the cause list indicate that lesser number of cases were listed before the Hon’ble Court, and even prior to 03.03.2022, no one was present on 28.02.2022, therefore, we cannot presume that supplementary cause-list was published at late night and learned counsel was not aware about the listing of the case. Herein, there is no justification about non-appearance on 28.02.2022. 6. 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.

7. 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 [2025:RJ-JP:16514] (4 of 7) [CRES-1214/2024] preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 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.

8. 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 [2025:RJ-JP:16514] (5 of 7) [CRES-1214/2024] and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay.

9. 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.

10. 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; (iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; [2025:RJ-JP:16514] (6 of 7) [CRES-1214/2024] liberal (iv) In order to advance substantial justice, though justice-oriented approach, 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.

11. A very recently in case of H. Guruswamy & Ors. Vs. A. Krishnaiah Since Deceased by LRs (Civil Appeal no. 317/2025) reported as 2025 INSC 53 Hon’ble Supreme Court has considered three basic words normally considered by the Courts for allowing condonation of delay and same are “liberal approach”, “justice oriented approach” and “substantial justice” and observed that these terms should not be employed to frustrate or jettison the substantial law of limitation. Further, the Bench observed that rule of limitation are based on principles of sound public policy and principles of equity. No Court, should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time. [2025:RJ-JP:16514] (7 of 7) [CRES-1214/2024]

12. In view of discussions made hereinabove, no sufficient reason is assigned for condonation of delay, therefore, the application under Section 5 of Limitation is liable to be dismissed, similarly, no sufficient reason is assigned for absence on

03.03.2022 and also for 28.02.2022, therefore, the restoration application is also liable to be dismissed.

13. Consequently, application under Section 5 of Limitation Act is dismissed along with restoration application.

14. Misc. application, if any, also stands disposed of.

15. No order as to costs. MONU /114-S (ASHOK KUMAR JAIN),J