2024 INSC 281 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(ARISING OUT OF SLP (C) NO.14974 OF 2022)
K.B. LAL (KRISHNA BAHADUR LAL) …APPELLANT
Versus
GYANENDRA PRATAP & ORS. ...RESPONDENTS
JUDGMENT
SUDHANSHU DHULIA, J.
1. Leave granted.
2. The appellant before this court has challenged the order
dated 19.05.2022 passed by the High Court of Judicature at
Allahabad, by which the petition filed by the appellant under
Article 227 of the Constitution of India was dismissed. The
appellant had invoked the supervisory jurisdiction of the High
Court under Article 227 of the Constitution of India, against the
order
Signature Not Verified dated 28.03.2022 of the Additional District Judge,
Digitally signed by
Nisha Khulbey
Date: 2024.04.08
15:40:27 IST
Reason:
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Barabanki, who had upheld the order dated 07.10.2021 of the
Civil Judge (Jr. Division), Barabanki.
3. The dispute between the parties to this appeal relates to a
piece of land situated in village Gharsaniya, Pargana Dewa,
Tehsil-Nawabganj, District - Barabanki, which was sold by one
Kalawati (Respondent No. 4 herein) to one Mansa Ram
(Respondent No. 5 herein), vide sale deed dated 30.03.2006.
Thereafter, the property was sold by Respondent No. 5 to the
appellant herein vide a registered sale deed dt. 13.04.2006.
4. On 22.04.2006, Civil Suit for permanent injunction and
cancellation of the sale deed dated 30.03.2006, was filed by the
Respondent Nos. 1, 2 & 3 herein before the Civil Judge (Jr.
Division), Barabanki. The appellant was impleaded as Defendant
No. 3 in the suit. It was contended before the Trial Court by
Respondent Nos. 1, 2 & 3 that Respondent No. 4 had no
transferrable right or title over the property when the sale deed
dated 30.03.2006 was executed in favour of Respondent No. 5
and thus, the property could not have been sold to Respondent
No. 5. Respondent Nos. 1, 2 & 3 asserted their claim over the
property before the Trial Court stating that they were the
bhumidhar & joint owners of the suit property and were also in
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possession of the same because the predecessor-in-interest of the
property was their uncle and he had executed a will deed dated
20.05.1997 in their favour.
5. After service of notice, vakalatnama of the appellant’s
counsel was filed on 22.04.2006. During the course of the
hearing, an order dated 06.09.2006 was passed by the trial
court, by which the suit was to proceed ex-parte against the
appellant. In the order dated 06.09.2006, it was recorded by the
Trial Court that a perusal of the record would indicate that the
appellant was duly served, but he did not file any written
statements, and thus, it would be appropriate to proceed ex-parte
against him. It is this order of the trial court, which was sought
to be recalled by the appellant by filing an application under
Order IX, Rule 7 of the Code of Civil Procedure, 1908 (hereinafter
“CPC”). However, this application was filed by the appellant on
01.09.2017, i.e. after an inordinate delay of almost 11 years. To
explain the delay, the appellant argued that the summons and
notice of the case were not received by him and that the advocate
appointed by him belonged to another city, who did not pursue
the case diligently, and it was only in the year 2011, when he
inspected the case file that he came to know about the order
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dated 06.09.2006. Even here as to why it took him another 6
years to file the application, as he had the knowledge in any case
in the year 2011, has not been explained. But this is not enough.
Even this application, filed in the year 2017, was admittedly not
pressed before the Trial Court by the appellant, for the reason
that correct facts were not mentioned in the application. Finally,
another application under Order IX, Rule 7 of the CPC came to
be filed yet again by the appellant on 23.11.2020.
6. This second application filed by the appellant was dismissed
by the trial court vide order dated 07.10.2021. What weighed in
with the trial court, while dismissing the appellant’s application
under Order IX, Rule 7 of the CPC, was the fact that the
appellant was duly served and had filed vakalatnama of his
counsel in April 2006 but did not file written statements in time
and on 12.07.2011 an application was filed by the appellant,
seeking permission to file the written statements. It was noted by
the Trial Court that the explanation tendered by the appellant for
the delay in filing the application under Order IX, Rule 7 of the
CPC was that the advocate appointed by him at the time of
receiving summons, i.e., April 2006, did not pursue the matter
diligently and had defrauded the appellant. Thus, the appellant
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appointed another advocate, namely Shri R.D. Rastogi in May
2006. This explanation, as noted by the trial court, was based on
contradictory statements and wrong facts, and no reasonable
cause was given for the delay caused. Hence, it was dismissed.
7. Aggrieved by order dated 07.10.2021 by which his
application under Order IX, Rule 7 of the CPC for setting aside
the order dated 06.09.2006 was dismissed by the trial court, the
appellant preferred a Revision, which came before Additional
District Judge, Barabanki (hereinafter referred to as “Revisional
Court”). Vide order dated 28.03.2022, the revisional court
dismissed the Civil Revision filed by the appellant. The revisional
court, upon examination of the material on record, found that the
first application under Order IX, Rule 7 of the CPC which was
filed by the appellant on 01.09.2017, was not pressed, owing to
the fact that initially he had appointed an advocate who did not
attend the case, and wrong facts were mentioned by a ‘junior
advocate’ in the first application. Hence, another advocate filed
the second application on 23.11.2020, mentioning the correct
facts. Yet, the signature on the first application filed in the year
2017 and on that of the second application filed in the year 2020
were of the same advocate, namely, Shri R.D. Rastogi. It was also
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observed by the revisional court that although it was averred by
the appellant that he was put in dark by the counsel earlier
engaged by him, there is no reference to his name. Thus, upon
consideration of the entire material on the record, it was held by
the revisional court that the application under Order IX, Rule 7
of the CPC for recalling order dated 06.09.2006 was filed by the
appellant not only after a long delay of 14 years, but also without
assigning any satisfactory reasons for the delay, hence, the
revisional court found no error in the order dated 07.10.2021 of
the trial court and accordingly, the Civil Revision preferred by the
appellant was dismissed.
8. Assailing the order of the revisional court, the appellant
filed a petition under Article 227 of the Constitution of India,
invoking the supervisory jurisdiction of the High Court of
Judicature at Allahabad. The High Court, vide impugned order
dated 19.05.2022, affirmed the orders of both the courts below
and dismissed the petition filed by the appellant. The High Court,
while dismissing the said petition, took note of the fact that the
suit was filed before the trial court in the 2006, by the
respondent-plaintiffs and the appellant-defendant appeared and
filed the vakalatnama of his counsel on 22.04.2006 and in the
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year 2011, moved an application seeking permission to file
written statements. Upon consideration of the fact that the
appellant’s counsel remained the same throughout, the High
Court was of the opinion that while filing the application in the
year 2011, the appellant’s counsel would definitely have come to
know about the order dated 06.09.2006, by which the trial court
had decided to proceed ex-parte against the appellant. Despite
this, the first application under Order IX, Rule 7 of the CPC was
moved only on 01.09.2017, which was also not pressed for 3
years, and then the second application was moved on 23.11.2020
without showing any “good cause”, as required under Order IX,
Rule 7 of the CPC. Thus, no perversity was found by the High
Court in the orders of both the courts below. The High Court
hence refused to exercise its supervisory jurisdiction under
Article 227 of the Constitution, and in our opinion, rightly so.
In this case the main question is of delay. Should an
inordinate delay, which has no reasonable explanation be
condoned?
9. Whether an application filed by the appellant, under Order
IX, Rule 7 of the CPC can be allowed, after a delay of almost 14
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years, is the only question before us. Was there a sufficient cause
for filing such a belated application?
Although the term ‘sufficient cause’ has not been defined in
the Limitation Act, it is now well-settled through a catena of
decisions that the term has to be construed liberally and in order
to meet the ends of justice. The reason for giving the term a wide
and comprehensive meaning is quite simple. It is to ensure that
deserving and meritorious cases are not dismissed solely on the
ground of delay.
10. There 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
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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.
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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
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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.
...………………………….J.
[SUDHANSHU DHULIA]
......... ..………………….J.
[PRASANNA B. VARALE]
New Delhi.
April 08, 2024.
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