Umesh Chandra Tripathi v. State of U.P. Thru. Prin. Secy. Home, Lucknow and Another

Court No. - 27 Case :- CRIMINAL REVISION No. - 201 of 2024 Revisionist :- Umesh Chandra Tripathi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And Another Counsel for Revisionist :- Pramod Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi,J.

¶1Heard Sri Pramod Kumar Shukla, the learned counsel for the revisionist, Sri Rishikesh Verma, the learned A.G.A. appearing on behalf of the State and perused the records.

¶2By means of the instant revision filed under Section 397 Cr.P.C. the revisionist has challenged the validity of an order dated

12.01.2024, passed by learned Additional Principal Judge (Family Court), Barabanki in Criminal Misc. Case No.1319 of 2023: Umesh Chandra Tripathi Vs. Aarti Tiwari, which has been filed by the revisionist under Sections 126 (2) Cr.P.C. for setting aside an ex-parte order dated 24.08.2022.

¶3The application under Section 126 (2) Cr.P.C. was filed with a delay and in the application filed under Section 5 of Indian Limitation Act the revisionist had stated that he had received a notice from the Family Court directing him to appear on 13.07.2023 but he did not disclose the date of receipt of the notice. He further stated that thereafter he got the file inspected and got a certified copy of the impugned order dated 11.08.2023. The revisionist did not gave any explanation of the period spent between the date of notice and the date of obtaining the certified copy of the order. The copy of the order was received by the revisionist on 11.08.2023 and the application under Section 5 of Limitation Act was filed on 29.08.2023. The copy of the application under Section 5 of Limitation Act annexed with the revision is not accompanied by any affidavit in support of the application. In the application under Section 126 (2) Cr.P.C. also the Page No. 1 of 7 revisionist made the same set of averments and and apparently no affidavit was filed even in support of that application.

¶4The application has been rejected by means of the impugned order dated 12.01.2024, wherein the Family Court has recorded that the maintenance application was decided ex-parte on 24.08.2022, whereas the application under Section 126 (2) Cr.P.C. was filed on

29.03.2023, after more than one year since passing of the ex-parte order. The perusal of the maintenance case indicates that the opposite party no.2 repetitively took steps for service of notice on the revisionist through registered post. Summons sent through registered post were returned unserved repetitively with the endorsement that the revisionist was not available for service in spite of repetitive visits of the postman. The summons were sent through registered post on the correct address of the revisionist which is mentioned by him in his application. After same could not be served in spite of being sent repetitively through registered post the notice was served by publication in a newspaper. The revisionist could not give any explanation as to how the notice sent repetitively through registered post could not be served on him when he resides at the address and he did not appear even after publication of the notice in the newspaper.

¶5From the aforesaid facts, the Family Court drew a conclusion that the revisionist had knowledge of the proceedings since inception and the application under Section 5 of Limitation Act and that under Section 126 (2) Cr.P.C. were made on the basis of false averments.

¶6The application under Section 5 of Limitation Act and the application for setting aside an ex-parte order passed under Section 125 Cr.P.C. are necessarily required to be supported by an affidavit, whereas it appears that the revisionist had not filed any affidavit in support of the application. Even in the application filed in support of the application the revisionist did not disclose the date on which he got knowledge of the proceedings and he did not explain each day's delay.

¶7In Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors. (2013) 12 SCC 649, the Page No. 2 of 7 Hon'ble Supreme Court discussed the law regarding condonation of delay as explained in various precedents and summarized the same as follows:- "21. From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be Page No. 3 of 7 vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

¶22To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

¶8The Hon'ble Supreme Court in the case of Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 has held that :- "9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the Page No. 4 of 7 viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (SeeManindra Land and Building Corpn. Ltd. v.Bhutnath Banerjee [AIR 1964 SC 1336] ,Mata Din v.A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] ,Parimal v.Veena [(2011) 3 SCC 545 :

(2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150] andManiben Devraj Shah v.Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)

¶10In this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".

11.The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but onlyso long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (VideMadanlalv.Shyamlal[(2002) 1 SCC 535 : AIR 2002 SC 100] andRam Nath Saov.Gobardhan Sao[(2002) 3 SCC 195 : AIR 2002 SC 1201] .)

¶12It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress Page No. 5 of 7 resulting from its operation.' The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maximdura lex sed lexwhich means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

¶13The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According toHalsbury's Laws of England, Vol. 28, p. 266: 605.Policy of the Limitation Acts."The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (SeePopat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] ,Rajender Singhv.Santa Singh[(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patilv.Jalgaon Medium Project[(2008) 17 SCC 448 :

(2009) 5 SCC (Civ) 907] .)

¶14In P. Ramachandra Raov.State of Karnataka[(2002) 4 SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulayv.R.S. Nayak[(1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701] .

¶15The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the 'sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and Page No. 6 of 7 circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

¶9When the revisionist did not approach the court with clean hands disclosing all the correct facts, the learned Family Court has not committed any error in rejecting the application after recording the conclusion that since notices were sent through registered post repetitively to the correct address of the revisionist and the same were returned with the endorsement that the revisionist was not available for service in spite of repetitive visits of the postman and the notice was published in newspaper containing the correct address of the revisionist, there was no illegality in the order passed ex-parte. The revisionist could not show any sufficient cause for condonation of delay or for setting aside the ex-parte order.

¶10There is no error or illegality in the impugned order. The revision lacks merit and the same is accordingly dismissed. . (Subhash Vidyarthi, J.) Order Date :- 20.3.2024 Ram. Page No. 7 of 7 High Court of Judicature at Allahabad, Lucknow Bench