# Dinesh Chandra Dubey v. Kripa Shankar Dubey & Ors. 260 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 4 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-18
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chandra-dubey-v-kripa-shankar-dubey-ors-260-indian-law-reports-allahabad-43577
- **Pages:** 6

## Headnote

Appellant sought condonation under Section 5 Limitation Act citing poverty, illiteracy, old age ailments, and
decision to file appeal only after visit to Allahabad "Mela" in January 2016 and advice of new counsel - Held,
no plea or material that he was unable to arrange expenses, no assertion of wrong advice or ignorance of
limitation when he had earlier filed suit and first appeal in time, showing conscious decision not to pursue
further and change of mind after fresh legal advice cannot constitute "sufficient cause" - long and deliberate
inaction, without cogent explanation, not condonable; delay condonation application and second appeal
dismissed as time-barred.

Limitation - Sufficient cause - Public policy - Reiterated that Limitation Act is a statute of repose; object
is to secure finality in litigation, prevent stale claims and induce prompt remedies - Court must consider
hardship to both sides; in absence of satisfactory, bona fide and reasonable explanation, delay beyond
prescribed period cannot be condoned by resort to sympathy or inherent powers - Civil court cannot travel
beyond Section 5 to extend limitation - Application rejected where appellant failed to demonstrate any legally
sustainable cause for not filing appeal within time. (Paras 6-7, 11-14)

Case Law discussed:

## Text

4 All. M/S Ankur Steel Corporation Vs Ashoka Marcantile Limited
259
3. The said agreement in clause 23 contains an arbitration agreement and at the same time provides that
the Courts at Delhi shall have exclusive jurisdiction over all matters arising out of the agreement.

4. Sri K.M. Garg, learned counsel for the petitioner states that since the cause of action for seeking
appointment of an Arbitrator arose in State of U.P. at Modi Nagar the Hon'ble Chief Justice or his designate at
the Allahabad High Court have the jurisdiction for the appointment of Arbitrator under Section 11 of the
Arbitration and Conciliation Act, 1996.

5. The Code of Civil Procedure vide Sections 15 to 20 provides for the place of suing. The said
provisions in short, lay down that the suits shall be instituted where the subject matter is situate or where the
defendant resides or the cause of action arises.

6. In the instant case, the cause of action may have wholly or partly arisen within the State of U.P. but
since the defendant to the proceedings as per the agreement dated 12th August, 2010 which has been annexed as
Annexure - 1 to the petition, reveals that the defendant is resident of Delhi as is also evident from its address as
mentioned in the petition, on the analogy of Section 20 C.P.C., the suit or any proceeding against it irrespective
of place of cause of action and the situation of the subject matter would also be at the place where the defendant
resides i.e. Delhi.

7. The parties to the agreement, however, vide clause 23 of the agreement have agreed that the courts
at Delhi alone shall have exclusive jurisdiction over all matters arising out of the agreement. In view of this
specific clause of the agreement, the parties have agreed to oust the jurisdiction of the Courts of U.P. and have
confined the same to Delhi alone. Accordingly, the Courts in U.P., even the Chief Justice or his designate of the
Allahabad High Court has no jurisdiction to take up any matter arising out of the agreement between the parties.

8. In such a situation the only course available to the petitioner is to go before the Hon'ble Chief Justice
or his designate at the Delhi High Court. This petition is not maintainable.

9. Accordingly, the writ petition is dismissed with liberty to the petitioner to apply before the
appropriate Court.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal Defective No.- 72 Of 2016

Dinesh Chandra Dubey ...Appellant
Versus
Kripa Shankar Dubey & Ors. ...Respondents
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Ravindra Prakash Srivastava

Second appeal delayed by 1 year 143 days - Original Suit No. 352/1999 for Abadi property between real
brothers dismissed on 19.11.2008; Civil Appeal No. 109/2008 dismissed on 31.05.2014, findings affirmed -
Appellant sought condonation under Section 5 Limitation Act citing poverty, illiteracy, old age ailments, and
decision to file appeal only after visit to Allahabad "Mela" in January 2016 and advice of new counsel - Held,
no plea or material that he was unable to arrange expenses, no assertion of wrong advice or ignorance of
limitation when he had earlier filed suit and first appeal in time, showing conscious decision not to pursue
further and change of mind after fresh legal advice cannot constitute "sufficient cause" - long and deliberate
inaction, without cogent explanation, not condonable; delay condonation application and second appeal
dismissed as time-barred.

Limitation - Sufficient cause - Public policy - Reiterated that Limitation Act is a statute of repose; object
is to secure finality in litigation, prevent stale claims and induce prompt remedies - Court must consider
hardship to both sides; in absence of satisfactory, bona fide and reasonable explanation, delay beyond
prescribed period cannot be condoned by resort to sympathy or inherent powers - Civil court cannot travel
beyond Section 5 to extend limitation - Application rejected where appellant failed to demonstrate any legally
sustainable cause for not filing appeal within time. (Paras 6-7, 11-14)

Case Law discussed:

1. Popat and Kotech Property v. State Bank of India Staff Association, (2005) 7 SCC 510
2. Damodaran Pillai & Ors. v. South Indian Bank Ltd., AIR 2005 SC 3460

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This is defective time-barred appeal. Heard learned counsel for the appellant on disposal
of application for condonation of delay in filing the present second appeal.

2. Original Suit No. 352/1999 Dinesh Chandra Dubey v. Kripa Shanker Dubey & others ,
was dismissed by the judgment dated 19.11.2008, of Civil Judge (Junior Division), Naugarh,
Siddharthnagar. Against this judgement of trial court, Civil Appeal No. 109/2008 Dinesh Chandra
Dubey v. Kripa Shanker Dubey & others was filed, which was heard and dismissed by judgment
dated 31.05.2014 of Additional District Judge, Court No.-2, Siddharthnagar. By this judgment, the
findings and judgment of trial court was confirmed.

3. Against the judgment of trial court as well lower appellate court, the memorandum of
second appeal was filed by plaintiff-appellant beyond 1 year and 143 days after the lapse of period
of limitation. This is supported by application for condonation of delay in filing appeal along with
affidavit of plaintiff-appellant. In this affidavit the grounds taken for condonation of delay are
mentioned in paras 2 to 5 on affidavit, which are as under:-

"2. That the deponent is very poor and illiterate person and suffering from old age
disease from long time.
4 All. Dinesh Chandra Dubey Vs Kripa Shankar Dubey & Ors.
261
3. That after some time anyhow on 14.01.2016 he came to Allahabad in "Kumbha
Mela" and thereafter contacted to counsel Sri R.P. Srivastava and knowing about legal procedure
and after considering material facts the counsel advise him to file second appeal before this
Hon'ble Court with delay condonation application.

4. That immediately the deponent came to her home and managed necessary
expenses without delay contacted to Sri R.P. Srivastava on 26.01.2016 then he immediately drafted
Second Appeal.

5. That there is no deliberate delay or negligence on the part of the deponent for
filing the present second appeal, therefore, it is expedient in the interest of justice that this Hon'ble
Court may graciously be pleased allow the condonation application, and condone the delay, if any,
in filing the present second appeal otherwise the deponent / appellant shall suffer great irreparable
loss and injury which can bot be compensated in terms of money."

4. Learned counsel for the appellant contended that no deliberate delay was caused by the
appellant in filing the second appeal, when his counsel advised then he had decided to file appeal
and filed memorandum of appeal without any unnecessary delay. Such delay is genuine for
sufficient reason, therefore, such delay should be condoned.

5. Prima-facie it appears to court that the ground mentioned in delay condonation
application and supporting affidavit was not sufficient, therefore, without informing and issuing the
notices to the respondents hearing was made on this application and order is being passed.

6. It is nowhere mentioned in application or affidavit that plaintiff was so poor, that he was
unable to arrange money/expenses for filing the second appeal within time. The judgment of lower
appellate court was passed in May, 2014 and he had knowledge of same from very beginning. It is
no where mentioned that plaintiff-appellant was advised by his local / regional counsel of district
Siddhartha Nagar not to prefer second appeal. It appears that after the judgment of lower appellate
court, the plaintiff-appellant had intended not to further pursue the matter, but when he visited at
Allahabad in January, 2016, in "Kumbh Mela" (it appears that it should be "Maagh Mela"), he
came in contact new counsel at Allahabad, then he was advised to prefer delayed Second Appeal
with delay condondation application. According to the affidavit, he contacted his counsel of
Allahabad on 14.01.2016 and 26.01.2016 and then immediately filed appeal on 03.02.2016, thus,
there is no ground for inability to arrange money/ expenses for filing the appeal.

7. It is no where mentioned in affidavit or application that applicant-appellant or his
counsel had no knowledge of legal provisions of law of limitation. When the appellant had
instituted original suit and first appeal within time, then it is expected that he had the knowledge of
procedure regarding to law of limitation. Thus, there appears no ground regarding lack of legal
knowledge of procedure, wrong advise of counsel or monitory reason for arranging the expenses.
In the absences of this reasons, there appears no ground that may explained sufficient explanation
for filing delayed memorandum of appeal and condonation of delay and sufficient ground of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
condonation of delay for the same. In these circumstances, this contention of learned counsel for
the appellant is not acceptable that appeal may be admitted for deciding the matter on merit, after
condonation of such delay in filing appeal.

8. As stated about the disputes in question relates to property of Abadi between the near
relatives and real brothers. The plaintiff-appellant had knowledge from very beginning that he had
lost the original suit and first appeal, but he had decided not to prefer appeal for the reasons best
known to him. He decided to prefer the appeal when he was so advised by new counsel, who met
him in Allahabad during "Mela" period.

9. In Popat and Kotech Property v. State Bank of India Staff Association(2005) 7 SCC
510, Hon'ble Apex Court had held as under:-

"7. The period of limitation is founded on public policy, its aim being to secure the
quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to prevent
oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general
and public policy and incorporates a principle of great benefit to the community. It has, with great
propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation
by burying in one common receptacle all the accumulations of past times which are unexplained
and have not from lapse of time become inexplicable. It has been said by John Voet, with singular
felicity, that controversies are limited to a fixed period of time, lest they should be immortal while
men are mortal. (Also see France B. Martins v. Mafalda Maria Teresa Rodrigues;(1999) 6 SCC
627).

8. Bar of limitation does not obstruct the execution. It bars the remedy. (See V.
Subbf Rao v. Secy. to Govt. Panchayat Raj and Rural Development, Govt. of A.P.; (1996)7 SCC
626 )

9. Rules of limitation are not meant to destroy the 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 ut sit finis litium (it is general welfare that a
period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively
fixed period of time (See N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123)."

10. In Damodaran Pillai & others v. South Indian Bank Ltd., AIR 2005 S.C. 3460,
Hon'ble Apex Court had held as under:-
4 All. Dinesh Chandra Dubey Vs Kripa Shankar Dubey & Ors.
263
"14. It is also trite that the civil court in absence of any express power cannot
condone the delay. For the purpose of condonation of delay in absence of applicability of the
provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

15. It is well settled that when a power is to be exercised by a civil court under an
express provision, the inherent power cannot be taken recourse to.

"20. The principles underlying the provisions prescribing limitation are based on
public policy aiming at justice, the principles of repose and peace and intended to induce claimants
to be prompt in claiming relief.

21. Hardship or injustice may be a relevant consideration in applying the
principles of interpretation of statute, but cannot be a ground for extending the period of
limitation."

11. This legal position is explicitly clear that the principles underlying provisions of
limitation are based on public policy aiming that justice should be furnished to all the parties and
hardship or injustice may be relevant consideration in applying the discretion for condoning the
delay. But such hardship of both the parties should be considered. In condoning the delay beyond
period of limitation provided by the statute there must be cogent and satisfactory reasons. Such
reasons are lacking in present matter.

12. The application for condonation of delay has been moved by appellant under Section 5
of Limitation Act, 1963, which reads as under:

"5. Extension of prescribed period in certain cases.--Any appeal or any
application, other than an application under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the appeal or making the
application within such period."

13. There is period prescribed for initiation of every legal proceedings in Limitation Act,
and such period may be extended in accordance with mandatory provisions of the Act. The said
provisions of Section-5 make its explicitly clear and mandatory that an application for extension of
prescribed period of limitation may be allowed only if the appellant or applicant satisfies the Courts
that he had sufficient cause for not preferring the appeal or making the application within such
period. As discussed above, for deciding the matter of limitation not only the case of applicantappellant should be considered, but the principles underlying the provisions the Act, which are
based on public policy alongwith hardship and injustice to other party should also be considered. In
the present matter, every consideration leads to inference against applicant-appellant. It has also
been proved that applicant-appellant had failed to satisfy this Court that he had sufficient cause for
moving the application for setting aside the abatement or for not moving the substitution
264 INDIAN LAW REPORTS ALLAHABAD SERIES
application within period of limitation therefore under the provisions of Section 5 of Limitation Act
his application should not be allowed.

14. In the present case, there is no sufficient ground for condoning the deliberate delay very
long, memorandum of second appeal, in the absence of any reasonable or sufficient ground the
Civil Misc. Delay Condonation Application No. 76648 of 2016 is hereby rejected. Therefore, being
time-barred, the present Second Appeal (Defective) No. 72 of 2016, is also dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Civil Revision No.- 120 Of 2012

Om Sai Sahkari Samiti Limited ...Revisionist
Versus
Sri Ram Het (Adopted) s/o Sri Narena & Ors. ...Respondents

Counsel for the Revisionist:
 S.N. Tiwari, P.N. Saksena, S.K. Tiwari

Counsel for the Respondents:
Raj Singh, Rishikesh Tripathi

This revision has been filed against the order dated 25.01.2012 passed by Ist Addl. District Judge,
Gorakhpur, in Civil Appeal No. 122/2010 (Ram Het v. Shyam Lal & others) by which application 12-Ga of
appellant (/plaintiff) under Order-VII, Rule-11 CPC for amendment in plaint of original suit was allowed.

Held: Para-

Case Law discussed:
Union of India v. Ibrahim Uddin, (2012) 8 SCC 148;
State of Uttaranchal Vs. Sunil Kumar Singh AIR 2008 SC 2026
Paul George v. State 2002 Cri.L. J. 996

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the revisionist. None was present for the respondent at the
time of hearing.

2. This revision has been filed against the order dated 25.01.2012 passed by Ist Addl.
District Judge, Gorakhpur, in Civil Appeal No. 122/2010 (Ram Het v. Shyam Lal & others) by