Brij Bhushan Singh v. The New India Assurance Co. Ltd., Lucknow Thru. Deputy Manager and Others

Court No. - 4 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 155 of 2024 Appellant :- Brij Bhushan Singh Respondent :- The New India Assurance Co. Ltd., Lucknow Thru. Deputy Manager And Others Counsel for Appellant :- Brijendra Chaudhary Hon'ble Rajnish Kumar,J. IA 1 of 2024

¶1Heard Sri Brijendra Chaudhary, learned counsel for the appellant.

¶2This highly belated appeal has been filed against the judgment and award dated 26.04.2019 passed in Claim Petition No.16/11 (Brij Bhushan Singh versus Sri Anjani Kumar and others) by Motor Accident Claims Tribunal/Addl. District & Session Judge, Court No.4/Special Judge, E.C. Act, Lucknow for enhancement alongwith this application for condonation of delay. This appeal is beyond time by 1210 days as per office report and in view of the order of the Hon'ble Apex Court in Suo Moto writ petition No.3/2020 CMC App No.21/22(15.03.2020 to 20.02.2022), 716 days have been excluded.

¶3The only ground taken for the aforesaid delay given in paragraph nos.3 and 4 of the affidavit filed in support of the application is that counsel for the appellant Mr. G.S. Pandey,Advocate had informed about the impugned order dated

26.04.2019 to the appellant on 22.07.2024 but did not explain anything about it, which shows that the appellant has not given any explanation of about 5 years 6 months. It also shows that the appellant had not tried to get the information of his case for such a long period. Even otherwise, the impugned judgment and award indicates that the appellant has failed to place on record the original receipts of the money spent on his treatment. Accordingly, the claim petition has been partly allowed.

¶4The appeal under Section 173 of Motor Vehicles Act, 1988 may be preferred within ninety days from the date of award. Second proviso to Section 173 provides that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. Therefore, this Court has to see as to whether the appellant was prevented by sufficient cause from preferring the appeal within time or not.

¶5This Court has to see as to whether the grounds taken by applicants/appellants are sufficient for condonation of delay on account of which he was prevented from preferring the appeal in time or only the excuses have been given. As disclosed above the appellant has not given the sufficient ground for condonation of delay. Only the excuses have been given levelling allegations against the counsel, which are not sufficient to condone the delay of such a long period. Even otherwise the appellant had been thorough negligent in pursuing the matter.

¶6The Hon'ble Supreme Court, in the case of K.B. Lal (Krishna Bahadur Lal) Vs. Gyanendra Pratap and Other; 2024 (42) LCD 828, has held that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant. The relevant paragraph 10 is extracted here-in-below:-

¶10There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors. (2021) 18 SCC 384). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC 556). Thus, it is apparent that the words 'sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under: "21.1. (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. 21.2. (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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (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.

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

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to 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.

21.9. (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.

21.10. (x) If the explanation offered is concocted, or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

……………………….." (emphasis supplied) Having perused the application under Order IX, Rule 7 of the CPC dated

23.11.2020, filed by the appellant, and the accompanying affidavit, wherein the appellant had sought the benefit of Section 5 of the Limitation Act, for condonation of a delay of almost 14 years, we find there was no satisfactory or reasonable ground given by the appellant explaining the delay. We say this for two reasons. First, it is an admitted position by the appellant himself that upon an inspection of the case file in the year 2011, he came to know about the order dated 06.09.2006, by which the Trial Court had decided to proceed ex-parte against him. What prevented the appellant from filing the application under Order IX, Rule 7 that year itself has not been satisfactorily explained at all, as the first application was only filed in the year 2017. Secondly, the explanation offered by the appellant, which is that the advocate appointed by him did not pursue the matter diligently, and then another advocate was appointed by him who inadvertently forgot to file the application does not find support from the records. What is clear is that the appellant has been grossly negligent in pursuing the matter before the trial court. Thus, the trial court, the revisional court as well as the High Court, were correct in dismissing the belated claim of the appellant. We find no reason to interfere with the impugned order dated 19.05.2022 of the High Court of Judicature at Allahabad. The appeal stands dismissed."

¶7This Court has to see the sufficient 'explanation' for condonation of delay and not the 'excuses' for condoning the delay as held by the Hon'ble Supreme Court in the case of Sheo Raj Singh & Others Vs. Union of India and Another; (2023) 10 SCC 531. The relevant paragraphs 31 and 32 are extracted here-in-below:- "31. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an "explanation" and an "excuse". An "explanation" is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must, however, be taken to distinguish an "explanation" from an "excuse". Although people tend to see "explanation" and "excuse" as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real.

¶32An "excuse" is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an "excuse" would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication."

¶8In view of above,it is apparent that the appellant has failed to give any explanation for such a long period. A litigant who is such negligent in pursuing the matter is not entitled for any concession from the Court. The appeal has been filed on misconceived and baseless grounds and without explanation for the aforesaid period, what to say of the sufficient cause,which may have prevented her from filing the appeal. Therefore the appeal is liable to be dismissed.

¶9The application for condonation of delay is dismissed. Consequently, the appeal is dismissed. Order Date :- 8.11.2024 Akanksha Sri. High Court of Judicature at Allahabad, Lucknow Bench