Ajoy Kr. Boruah v. Anjan Kr. Boruah and 2 Ors

ORDER

27.09.2024 Heard P.K. Gogoi, the learned counsel for the applicant and Mr. S. Sarma, learned counsel for the opposite parties.

¶2This interlocutory application, under Section 5 of the Limitation Act, 1963, is preferred by the applicant; Shri Ajoy Kr. Boruah, for condonation of delay of 950 days in preferring an appeal, against the Judgment and Decree dated 19.09.2017, passed by the learned Civil Judge, Sivasagar, in Title Suit No. 35 of 2012.

¶3It is to be noted here that vide impugned Judgment and Decree dated

19.09.2017, passed by the learned Civil Judge, Sivasagar has dismissed the Title Suit No. 35 of 2012, filed by the applicant for declaration and partition.

¶4The background facts leading to filing of the present application are adumbrated here in below:- "The applicant herein had instituted a Title Suit No. 35 of 2012, before the learned Civil Judge, Sivasagar, for declaration and partition of a plot of land measuring 3 Katha, covered by P.P. No. 2477 and Dag No. 4687, under Nagarmahal Mouza within the district of Sivasagar. He had inherited the said plot of land along with the defendant No. 1 - opposite party, after death of Late Dimbeswar Sarma Baruah being his grandson. Both of them have equal share as co-pattadar over the suit land and the applicant had constructed a Assam Type pucca house consisting of four rooms and the said house is also required to be partitioned in order to avoid conflict in future. The applicant had approached the defendant No.1 Page No.# 3/17 for partition of the suit property but he did not pay any heed. Being left with no other option he had instituted the Suit. The respondent/opposite party had contested the suit by filing written statement. Thereafter hearing learned Advocates of both the parties; the learned trial court had dismissed the suit mainly on the ground of non-joinder of necessary parties. Thereafter, because of his poor economic condition and also on account of suffering of his family in Covid-19 pandemic, the applicant could not be able to manage resources to file an appeal against the said judgment and decree in time. However, his relative came forward to provide him monetary assistance when he explained his situation to them. And when the counsel had prepared the appeal, delay of 950 days occurred. Therefore, he approached this court by filing the present application."

¶5The respondent/opposite party entered appearance and contested the application by filing written objection. It is stated that the ground assigned for condonation of delay of 950 days are not sufficiently explained. It is stated that the petitioner is bound to explain each day of delay. It is stated that the Title Suit was dismissed on 19.09.2017 and the ground so assigned are false and baseless and concocted and therefore, it is contended to dismiss the same.

¶6Mr. Gogoi, the learned counsel for the applicant submits that the judgment and decree was passed 19.09.2017 and thereafter, the applicant could not approach the court by filing an appeal on different grounds. Mr. Gogoi submits that the applicant is a poor person and he couldn't be able to manage resources to file an appeal in time. Mr. Gogoi also submits that the applicant and his family also suffered in Page No.# 4/17 Covid-19 pandemic. Thereafter, with the financial assistance of his relatives approached his counsel to file an appeal, but in the meantime delay of 950 days occurred and the same is not intentional and he has shown sufficient ground. Therefore, Mr. Gogoi has contended to allow this application.

¶7Per contra, Mr. Sarma has vehemently opposed the petition. According to Mr. Sarma the ground assigned are false and concocted and the same are falling for short of the requirement of becoming sufficient ground, to condon delay of 950 days. Therefore, it is contended to dismiss the application.

¶8Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record.

¶9Before directing a discussion into the points raised by the learned counsel for both the parties, it would be in the interest of justice to go through the decision of Hon'ble Supreme Court in respect of condonation of delay presently holding the field so to deal with the issue with greater precision.

¶10Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag vs. Mst. Katiji, reported in (1987) 2 SCC 107, has observed as under:- "The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - Page No.# 5/17 that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy, and such a liberal approach is adopted on principle as it is realized that:

¶1Ordinarily a litigant does not stand to benefit by lodging an appeal late.

¶2Refusing 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 day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

¶4When 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.

¶5There 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 Page No.# 6/17 risk.

¶6It 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the Page No.# 7/17 end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."

¶11Again in the case of N. Balakrishnan vs. M. Krishnamurthy, reported in (1998) 7 SCC 123, Hon'ble Supreme Court went a step further and made the following observations:-

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be un-condonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. Rules of limitation are not meant to destroy the Page No.# 8/17 rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain Page No.# 9/17 time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."

¶12In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, Hon'ble Supreme Court, referring to earlier authorities, broadly culled out the principles of condonation of delay as under:- "(1) 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.

(2)

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.

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

(4) No presumption can be attached to deliberate Page No.# 10/17 causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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

(6) 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.

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

(8) 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.

(9) 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 Page No.# 11/17 be given a total go by in the name of liberal approach.

(10) 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.

(11) 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.

(12) 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.

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

¶13To the aforesaid principles, Hon'ble Supreme Court also added some more guidelines taking note of the present day scenario, in the said case. 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 Page No.# 12/17 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."

¶14Again in the case of Pundlik Jalam Patil (Dead) by L.Rs. vs. Executive Engineer jalgaon Medium Project and Another, reported in (2008) 17 SCC 448, while dealing with the issue of condonation of delay, Hon'ble Supreme Court has held as under:- "29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

¶30Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale Page No.# 13/17 claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.

¶31It is true that when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing Page No.# 14/17 appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings."

¶15The legal proposition, which can be crystallized from the aforesaid decisions and discussion, is that courts are not supposed to legalize injustice, but are obliged to remove injustice. Therefore, liberal, pragmatic, justice-oriented, non-pedantic approach has to be adopted while dealing with an application for condonation of delay if 'sufficient cause' is being shown. The term 'sufficient cause' should be understood in their proper spirit, philosophy and purpose and 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. The paramount and pivotal consideration is substantial justice; the technical considerations should not be given undue and uncalled for emphasis. In respect of deliberate causation of delay, the presumption is not available but, gross negligence on the part of the counsel or litigant is to be taken note of, besides lack of bona fides imputable to a party seeking condonation of delay, which is a significant and relevant fact. The courts should not adhere to strict proof, but required to be vigilant so that there is no real failure of justice. The approach of the court must be liberal but at the same time, it must be reasonable also. In case of Page No.# 15/17 inordinate delay, strict approach is required to be taken while in case of delay of short duration, a liberal delineation is required. The fundamental principle, being weighing 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. While condoning delay the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. In the case the explanation, being 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 litigation. The entire gamuts 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. The State or a public body or an entity, representing a collective cause, should be given some acceptable latitude. But, the law of limitation is same for citizen and for governmental authorities.

¶16Thus, having informed ourselves, about the proposition of law, presently holding the field in respect of condonation of delay, now an endeavour will be made to examine how far the applicant has been able to explain the delay of 950 days in preferring the connected appeal and whether the same are sufficient or not.

¶17Now, adverting to the facts herein this application, I find that indisputably, the judgment and decree, which is being sought to be impugned in the connected appeal, was passed on 19.09.2017, by the learned Civil Judge, Sivasagar. But, the appeal was filed only on 19.07.2022, along with the present condonation application. The main ground assigned for the delay is his economic hardship. But, the applicant could have very well approached the District Legal Services Authority or concerned district or the High Court Legal Services Committee or the State Legal Services Authority, for free legal aid. But, admittedly he made no such venture. Page No.# 16/17

¶18So, far the other ground is concerned, Covid-19 Pandemic started in the last part of 2019 and during the period of 2020 till 2022, normal functioning of the court work was suspended. This court has also taken note of the direction of Hon'ble Supreme Court, in Suo Moto Writ Petition (C) No. 3 of 2020 (Re:- Cognizance for extension of limitation) wherein, vide order dated 10th January, 2020, it was directed to exclude the period from 15.03.2020 till 28.02.2022 for the purpose of limitation. But, even after excluding the aforesaid period from the limitation period, I find that there is no proper explanation for the period of

19.09.2017, till 15.03.2020. Again there is no proper explanation from March, 2022 till filing of appeal on 19.07.2022. In absence of a plausible ground, this court is of the considered opinion that liberal approach is not warranted herein this case. The applicant appears to be not serious and diligent.

¶19This court is not oblivious of the fact that a liberal, pragmatic, justice-oriented, non-pedantic approach, while dealing with an application for condonation of delay, has to be taken. The courts are not supposed to legalise injustice, but are obliged to remove injustice. But, this liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The court has to see that the parties do not resort to dilatory tactics, but avail their legal remedies promptly. The delay herein this case appears to be inordinate delay and applicant herein appears to be non-serious and hence his lackadaisical attitude cannot be rewarded by allowing the application for delay. There is lack of bonafide on his part.

¶20Thus, having carefully scrutinized the entire gamut of facts, this court is of the considered opinion that the delay of 950 days, which occurred here in filing the connected appeal, could not be explained properly by the applicant. There is serious lapse on the part of the applicant and if the same is condoned, it would amount to Page No.# 17/17 putting a premium upon the lapses on the part of the applicant.

¶21In the result, this Court finds no merit in this application. Accordingly, the I.A. and the connected appeal stand dismissed. The parties have to bear their own cost.

JUDGE Comparing Assistant

PageoNo.#o1/17 GAHC010207732022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/3659/2022o AJOYoKR.oBORUAHo S/OoLATEoPRAFULLAoBORUAH,o RESIDENToOFoWARDoNO.o10,oPHUKANoNAGAR,oSIVASAGARoTOWN,oPSo SIVASAGAR,oDISToSIVASAGAR,oPRESENTLYoRESIDINGoAToNAMGHARo PATH,oOLDoAMULAPATTY,oPO,oPSoANDoDISToSIVASAGAR,oASSAM VERSUSo ANJANoKR.oBORUAHoANDo2oORS.o S/OoLATEoPRAFULLAoBARUAH,o RESIDENToOFoWARDoNO.o10,oPHUKANoNAGAR,oSIVASAGARoTOWN,oPO,oPSo ANDoDISToSIVASAGAR,oASSAM 2:SRIoDIMBESWARoBORUAH oS/OoLATEoDINADHARoSARMAoBORUAH oRESIDENToOFoFARMoGATE oKHANAPARAoJANAPATH oGUWAHATIo22 3:SMTIoGAURIoBORUAH oW/OoLATEoPRAFULLAoBORUAH oRESIDENToOFoWARDoNO.o10 oPHUKANoNAGAR oPO oPSoANDoDISToSIVASAGAR oASSAo AdvocateoforotheoPetitionerooooo:oMRoBoBURAGOHAIN,oMRS.oBoTALUKDAR,MRoJoPo KACHARI,MR.oPoKoGOGOIo AdvocateoforotheoRespondento:oMRoBoSHARMA,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/17 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN