# Laxmi Narain Gupta & Ors v. Additional District Judge, Court No.3, Hardoi & Ors

- **Citation:** (2016) 5 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxmi-narain-gupta-ors-v-additional-district-judge-court-no-3-hardoi-ors-43716
- **Pages:** 14

## Headnote

Civil Law-Writ petition - Delay condonation - Appeal under Section 22 - U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972 - Ex parte release order - Delay of more than eight years - Section
5 Limitation Act - Section 14 Limitation Act - Sufficient cause - Due diligence - Wrong forum - Bona fides
- Mechanical condonation - Cryptic order - Failure to consider objections - Benefit of Section 14 - Not
applicable - Principles of Section 14 - Inordinate delay - Law of limitation - Rights accrued to decreeholder - Abuse of process - Order set aside.

The dispute relates to a shop situated at Mohalla Sulhara, Bilgram, Hardoi. The said shop was owned by Sri
Ram Babu and his wife Smt. Ram Devi and after their death the appellant nos. 1 to 5 and one Smt. Reshma
Devi became the owner of the said shop. The said shop was originally let out to one Sri Munnu Lal, the father
of respondent nos. 2 to 5, 7 & 8 and husband of respondent no. 6. After the death of Sri Munnu Lal,
respondent nos. 2 to 8 became the tenant of the shop in dispute. (Para 2)

Sri Anurag Narain, learned counsel for the petitioner, has vehemently submitted that the provisions of Section
14 of the Limitation Act are not applicable to the proceedings under the 1972 Act. The counsel submits that
there being no explanation, let alone a satisfactory explanation, for the inordinate delay of more than eight
years in filing the appeal, the application for condonation of delay was liable to be rejected. (Para 10)

Per contra, Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Sri Mohd. Aslam Khan, has supported
the order and has submitted that while considering 'sufficient cause' the court was obliged to adopt a liberal
approach. It was further submitted that once the discretion has been exercised in favour of the respondents
no interference from this Court was called for. Sri Mohd. Arif Khan has fairly conceded that the provisions of
Section 14 of the Limitation Act, as such, are not applicable to the proceedings under the 1972 Act. (Para 11)

Held: Para-(38,39,40,41)

## Text

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1010 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Rent Control No.- 79 Of 2013

Laxmi Narain Gupta & Ors. ...Petitioners
Versus
Additional District Judge, Court No.3, Hardoi & Ors. ...Respondents

Counsel for the Petitioners:
Anuran Narain

Counsel for the Respondents:
Manish Kumar, Mohammad Aslam Khan.

Civil Law-Writ petition - Delay condonation - Appeal under Section 22 - U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972 - Ex parte release order - Delay of more than eight years - Section
5 Limitation Act - Section 14 Limitation Act - Sufficient cause - Due diligence - Wrong forum - Bona fides
- Mechanical condonation - Cryptic order - Failure to consider objections - Benefit of Section 14 - Not
applicable - Principles of Section 14 - Inordinate delay - Law of limitation - Rights accrued to decreeholder - Abuse of process - Order set aside.

The dispute relates to a shop situated at Mohalla Sulhara, Bilgram, Hardoi. The said shop was owned by Sri
Ram Babu and his wife Smt. Ram Devi and after their death the appellant nos. 1 to 5 and one Smt. Reshma
Devi became the owner of the said shop. The said shop was originally let out to one Sri Munnu Lal, the father
of respondent nos. 2 to 5, 7 & 8 and husband of respondent no. 6. After the death of Sri Munnu Lal,
respondent nos. 2 to 8 became the tenant of the shop in dispute. (Para 2)

Sri Anurag Narain, learned counsel for the petitioner, has vehemently submitted that the provisions of Section
14 of the Limitation Act are not applicable to the proceedings under the 1972 Act. The counsel submits that
there being no explanation, let alone a satisfactory explanation, for the inordinate delay of more than eight
years in filing the appeal, the application for condonation of delay was liable to be rejected. (Para 10)

Per contra, Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Sri Mohd. Aslam Khan, has supported
the order and has submitted that while considering 'sufficient cause' the court was obliged to adopt a liberal
approach. It was further submitted that once the discretion has been exercised in favour of the respondents
no interference from this Court was called for. Sri Mohd. Arif Khan has fairly conceded that the provisions of
Section 14 of the Limitation Act, as such, are not applicable to the proceedings under the 1972 Act. (Para 11)

Held: Para-(38,39,40,41)

1. In the circumstances mentioned above, there is no iota of truth in the story put forward by the respondent
no 3. On the contrary, the private respondents have adopted dilatory tactics to prolong the litigation. Based
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1011
upon the present materials, this Court is not satisfied that sufficient cause has been made out to explain the
delay of more than eight years in filing the appeal. In the result, the writ petition is allowed. The impugned
order dated 31.05.2013 passed by the Additional District Judge, Court No. 3, Hardoi is set aside and the
application for condonation of delay filed by the respondents is dismissed.

2. As a corollary, the appeal filed by the respondents against the judgment and decree dated 05.11.2014 shall
stand dismissed as barred by time. The petitioner shall be entitled to cost of Rs 50,000/-.

Case Law discussed:

1. Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 - Paras 15
2. N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 - Paras 16
3. P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556 - Para 17
4. Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 - Para 18
5. State of Nagaland v. Lipok Ao, (2005) 3 SCC 752 - Para 19
6. Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, (2010) 5
SCC 459 - Paras 20
7. Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 - Paras
21
8. M/s Ram Narain Pvt. Ltd. v. State Trading Corporation of India Ltd., AIR 1983 SC 786- Para 31
9. Smt. Dhooran alias Ghooran v. District Judge, Kanpur, ARC 1982 (1) 197- Para 31

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Whether the Additional District Judge, Court No. 3, Hardoi was justified in condoning
more than eight years' delay in filing of appeal under section 22 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 (for short '1972 Act') by the respondent nos. 2
to 8 against the judgment dated 5.11.2004 passed by the Prescribed Authority / Additional Civil
Judge (Senior Division), Hardoi in P.A. Case No. 9 of 1999 is the short question which arises for
consideration in this writ petition.

2. The dispute relates to a shop situated at Mohalla Sulhara, Bilgram, Hardoi. The said
shop was owned by Sri Ram Babu and his wife Smt. Ram Devi and after their death the appellant
nos. 1 to 5 and one Smt. Reshma Devi became the owner of the said shop. The said shop was
originally let out to one Sri Munnu Lal, the father of respondent nos. 2 to 5, 7 & 8 and husband of
respondent no. 6. After the death of Sri Munnu Lal, respondent nos. 2 to 8 became the tenant of the
shop in dispute.

3. On 21.10.1999 the petitioners - landlords moved an application under Section 21 (1) (a)
of the 1972 Act, for release of the shop on the ground of their bonafide need. A joint written
statement was filed on behalf of all the tenants, through their advocate Sri Ajay Kumar Dwivedi.
After filing the written statement the respondent nos. 2 to 8 - the tenants did not pursue the matter
and ultimately on 05.11.2004 the release application moved by the petitioners was allowed by the
Prescribed Authority. The tenants were directed to hand over vacant possession of the shop in
question to the landlords within four months.
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
4. On 10/11.03.2005 the respondent no. 3 alone filed an application for recall of the ex
parte order dated 05.11.2004 along with an application under Section 5 of the Limitation Act, 1963
(for short 'Limitation Act') seeking condonation of delay. On 07.12.2007 the application for
condonation of delay was allowed. But, subsequently the application under Order 9 Rule 13 C.P.C.
moved by respondent no. 3 was rejected by the Prescribed Authority by an order dated 14.03.2008.
Against the judgment and order dated 14.03.2008 the respondent no. 3 preferred a Misc. Appeal
No. 15 of 2008 which too was rejected by Additional District Judge, Court No. 6, Hardoi vide
judgment dated 23.01.2009, as not maintainable. The order dated 14.03.2008 passed by the
Prescribed Authority and the judgment and order dated 23.01.2009 passed by Additional District
Judge was assailed by the respondent no. 3 before this Court in writ petition bearing Misc. Single
No. 595 of 2009, Manoj Kumar alias Nanhey vs. Additional District Judge & Ors.

5. The writ petition, mentioned above, was dismissed by a learned Single Judge of this
Court on merit on 20.07.2012. After the pronouncement of judgment in said writ petition, on the
request of the learned counsel for respondent no. 3, the learned Single Judge passed another order
clarifying that the judgment dated 20.07.2012 would not in any manner prejudice the right of
appeal, if any, of the respondent no. 3. The subsequent order dated 20.07.2012 is extracted below:-

"After pronouncement of judgment, learned counsel for the petitioner stated that
still he has right of appeal and this judgment ought not be construed as debarring him from availing
that remedy.

It is therefore made clear that if petitioner has right of appeal, this judgment does
not in any manner prejudice such right and competent Court shall look into all aspects of the matter
in accordance with law."

6. On 13.3.2013, after eight years four months and eight days to be precise, the respondent
nos. 2 to 8 preferred an appeal before the Additional District Judge, Court No. 3, Hardoi against the
judgment and order dated 05.11.2004 passed by the Prescribed Authority along with an application
under Section 14 read with Section 5 of the Limitation Act for condoning the delay in filing the
appeal. Paragraph 1 to 5 of the application for condonation of delay is extracted below for the sake
of reference:

आवेदन पत्र अन्तगगत धारा 14 व धारा 5 पररसीमा अधधननयम

1. यह फक प्राथीगण /अपीलाथीगण कानून की तकनीक से अनलभज्ञ है। आक्षेवपत/ आदेिननणवय ददनांफकत
05-1-2004 जो पी0 ए0 केस नं0-9 सन् 1999 िम कदमा लक्ष्मी नरायन आदद बनाम सतीि चन्र आदद में ननयत प्रागधकारी द्िारा
पाररत फकया गया था, को पूिव अगधिक्ता द्िारा एकपक्षीय आदेि है, प्रकट करते ह ए आदेि 9 ननयम 13 जा0दी0 के अधीन
आिेदन पत्र पी0ए0आर0एम0 नं0 1/05 पे्रवित फकया गया जो ददनांक 14-03-08 को ननरस्त ह आ जजसके विरूद्ध म तिररवम अपील
सं0-15/08 न्यायालय श्रीमान जनपद न्यायाधीि न्यायालय पर प्रस्त त की गयी जो न्यायालय श्रीमान अपर जनपद न्यायाधीि
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1013
कोटव नं0-6 द्िारा ददनांक 2301.2009 को ननरस्त कर दी गयी, उसके पश्चात् माननीय उच्च न्यायालय में भी आदेि 9 ननयम 13
जा0दी0 से सम्बजन्धत प्रकरण ररट यागचका संख्या 595@09 के माध्यम से पे्रवित फकया गया।

2. यह फक ऐसा प्रकट होता है फक पी0ए0 िाद सं0 9/1999 में पाररत ननणवय ददनांफकत 05-11-04 को एकपक्षीय
अिधाररत नही फकया गया और माननीय उच्च न्यायालय में प्रस्त त यागचका अस्िीकार करते ह ए अपील दाखखल करने का
विगधक अगधकार स रक्षक्षत फकया गया है।

3. यह फक ऐसा प्रकट होता है फक पूिव अगधिक्ताओं की सजगहीनता के आधार पर Wrong Forum Adopt
फकया गया और अपील प्रस्त त न करते ह ए आदेि 9 ननयम 13 जा0दी0, म तिररवम अपील उसके पश्चात् माननीय उच्च न्यायालय में
यागचका प्रेवित की गयी यह Wrong Forum अगधिक्ताओं की विगधक राय के आधार पर काररत ह आ।

4. यह फक अधीन धारा 14 पररसीमा अगधननयम का लाभ प्राप्त करने के अगधकारी प्राथीगण है।

5. यह फक माननीय उच्च न्यायालय में जो ननणवय ररट यागचका संख्या 595@2009 में ददनांक 20-07-2012 को
पाररत ह आ उसके पश्चात ददनांक 20-07-2012 को ही पाररत आदेि बाित प्रस्त त करने अपील का अगधकार की जानकारी ननयत
प्रागधकारी द्िारा पी0ए0 इजराय िाद सं0&4@07 में प्रपत्र 'घ' जारी फकये जाने के पश्चात निननय क्त अगधिक्ता द्िारा विगधक
राय लेने पर उनके द्िारा माननीय उच्च न्यायालय में अपीलाथी के अगधिक्ता मो. आददल खान से ददनांक 11-03-2013 को
दूरभाि से िातावलाप करने तथा उसी ददिस पी0ए0 िाद सं0&9@1999 में पाररत ननणवय ददनांक 05-11-04 की आदेि ि डडग्री की
प्रमाखणत प्राजप्त कर तत्पश्चात ददनांक 12-03-2013 को मा0 उच्च न्यायालय से पाररत उक्त पश्चातिती आदेि ददनांफकत 20-072012 की प्रमाखणत प्रनत प्राप्त करने पर आदेि ददनांक 20-07-2012 ई0 का ज्ञान हो सका। ज्ञान की नतगथ से प्राथीगण द्िारा
प्रस्त त अपील अन्दर लमयाद है।

7. The application for condonation of delay was resisted by the petitioners by filing
detailed objection.

8. On 31.05.2013, the Additional District Judge, Court No. 3, Hardoi, passed an order
whereby the delay in filing the appeal against judgment and order dated 05.11.2004 was condoned
and the appeal was admitted for hearing. The relevant portion of the order dated 31.05.2013 is
reproduced below:

Þउपरोक्त भान क मार जैन ि रानी चैधरी के प्रकरण अपील की ग्राह्यता से सम्बजन्धत है। फकन्त इस स्तर
पर अपील की ग्राह्यता पर विचार न कर केिल धारा 5 ि धारा-&14 लमयाद अगध0 पर विचार फकया जा रहा है।

अपीलाथी/प्राथीगण द्िारा लमगथलेि क मार बना डी0डी0सी0 आर0डी01⁄420131⁄2 469 को उक्त फकया गया है।
जजसमें कहा गया है फक विलम्ब के क्षमा के मामले में न्यायालय को लचीला दृजष्टकोण अपनाना चादहए, विगध का अथव अपील
के अगधकार को समाप्त करना नही है। न्यायालय द्िारा प्रयास करना चादहए की पक्षों को पयावप्त न्याय ददया जाये। बजाय
तकनीकी आधारों पर न्याय की प्रकृनत को समाप्त करने की प्राथी द्िारा प्रस्त त विगध व्यिस्था माननीय उच्च न्यायालय
इलाहाबाद द्िारा प्रनतपाददत है जबफक प्रत्यथी की ओर से प्रस्त त विगध व्यिस्थाएं मंगतराम, गजानन लसंह मंॅे उद्धत
प्रकरण माननीय उत्तराखण्ड ि पंजाब ि हररयाणा उच्च न्यायालय द्िारा प्रनतपाददत फकये गये हैं। इसी तरह बाल कृष्ण
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
उपरोक्त का प्रकरण भी राजस्थान उच्च न्यायालय द्िारा प्रनतपाददत फकया गया है। जो इस न्यायालय पर बाध्यकारी प्रभाि
नही रखता है जब फक अपीलाथी/प्राथीगण द्िारा प्रस्त त लमगथलेि क मारी का विगध दृष्यान्त इस न्यायालय में बाध्यकारी
प्रभाि रखता है।

अतः उपरोक्त विश्लेिण के पश्चात् मैं इस ननष्किव पर पह ंचता हूं अपील प्रस्त त करने में ह ए विलम्ब के
प्राथवना पत्र धारा 14 ि 5 लमयाद अगधननयम का प्राथवना पत्र भारी हजे पर स्िीकार फकये जाने योग्य है।ß

9. The order dated 31.05.2013 is under challenge in the present writ petition.

10. Sri Anurag Narain, learned counsel for the petitioner, has vehemently submitted that
the provisions of Section 14 of the Limitation Act are not applicable to the proceedings under the
1972 Act. The counsel submits that there being no explanation, let alone a satisfactory explanation,
for the inordinate delay of more than eight years in filing the appeal, the application for
condonation of delay was liable to be rejected.

11. Per contra, Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Sri Mohd.
Aslam Khan, has supported the order and has submitted that while considering 'sufficient cause' the
court was obliged to adopt a liberal approach. It was further submitted that once the discretion has
been exercised in favour of the respondents no interference from this Court was called for. Sri
Mohd. Arif Khan has fairly conceded that the provisions of Section 14 of the Limitation Act, as
such, are not applicable to the proceedings under the 1972 Act.

12. Heard the learned counsel for the parties and perused the record.

13. Section 5 of the Limitation Act provides for extension of period in certain cases. It,
inter alia, provides that any appeal may be admitted after the period of limitation prescribed
therefor when the appellant satisfies the court that he had "sufficient cause" for not preferring the
appeal within the period prescribed.

14. Before adverting to the facts of the case, it is apposite to take note of the principles of
law laid down by the Apex Court which have to be taken into account while considering an
application under section 5 of the Limitation Act for condonation of delay in filing an appeal. The
issue, however, is no longer res integra and is settled by a catena of decisions of the Apex Court.

15. The principle has been succinctly stated way back in 1962, in the case of Ramlal v.
Rewa Coalfields Ltd., AIR 1962 SC 361, and the same has been repeatedly quoted with respect and
approval. The Apex Court in paragraph 7 & 12 of the said report has held as follows:

"7. In construing Section 5 it is relevant to bear in mind two important
considerations. The first consideration is that the expiration of the period of limitation prescribed
for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as
binding between the parties. In other words, when the period of limitation prescribed has expired
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1015
the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond
challenge, and this legal right which has accrued to the decree-holder by lapse of time should not
be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient
cause for excusing delay is shown discretion is given to the court to condone delay and admit the
appeal."

 and in paragraph 12 it was observed as under:

"12. It is, however, necessary to emphasis that even after sufficient cause has been
shown a party is not entitled to the condonation of delay in question as a matter of right. The proof
of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested
in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the
application for condoning delay has to be dismissed on that ground alone. If sufficient cause is
shown then the court has to enquire whether in its discretion it should condone the delay. This
aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage
that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry
while exercising the discretionary power after sufficient cause is shown would naturally be limited
only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the
party was sitting idle during all the time available to it. In this connection we may point out that
considerations of bona fides or due diligence are always material and relevant when the court is
dealing with applications made under Section 14 of the Limitation Act. In dealing with such
applications the court is called upon to consider the effect of the combined provisions of Sections 5
and 14."

16. In the case of N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Apex
Court in paragraph 9, 12 & 13 has held as follows:

"9. 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 uncondonable 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.

12. A court knows that refusal to condone delay would result foreclosing a suitor
from putting forth his cause. There is no presumption that delay in approaching the court is always
deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation
Act should receive a liberal construction so as to advance substantial justice.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
13. 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 time then
the court should lean against acceptance of the explanation."

17. In the case of P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556 the Apex
Court while reversing the order passed by the High Court which had condoned the delay of 565
days in filing an appeal, observed as under:

"6. Law of limitation may harshly affect a particular party but it has to be applied
with all its rigour when the statute so prescribes and the courts have no power to extend the period
of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither
proper nor judicious. The order condoning the delay cannot be sustained."

18. In the case of Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Apex
Court observed as under:

"5. In exercising discretion under Section 5 of the Limitation Act the courts should
adopt a pragmatic approach. A distinction must be made between a case where the delay is
inordinate and a case where the delay is of a few days. Whereas in the former case the
consideration of prejudice to the other side will be a relevant factor so the case calls for a more
cautious approach but in the latter case, no such consideration may arise and such a case deserves a
liberal approach. No hard-and-fast rule can be laid down in this regard. The court has to exercise
the discretion on the facts of each case keeping in mind that in construing the expression "sufficient
cause", the principle of advancing substantial justice is of prime importance."

19. In the case of State of Nagaland v. Lipok Ao, (2005) 3 SCC 752, the Apex Court in
paragraph 8 of the report opined as under:

"8. The proof by sufficient cause is a condition precedent for exercise of the
extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the
delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be
taken into account in using the discretion."

20. In the case of Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial
Development Corpn., (2010) 5 SCC 459, the Apex Court held as under:

"14. We have considered the respective submissions. The law of limitation is
founded on public policy. The legislature does not prescribe limitation with the object of destroying
the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy
without delay. The idea is that every legal remedy must be kept alive for a period fixed by the
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1017
legislature. To put it differently, the law of limitation prescribes a period within which legal remedy
can be availed for redress of the legal injury. At the same time, the courts are bestowed with the
power to condone the delay, if sufficient cause is shown for not availing the remedy within the
stipulated time.

15. The expression "sufficient cause" employed in Section 5 of the Limitation Act,
1963 and similar other statutes is elastic enough to enable the courts to apply the law in a
meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid
down in dealing with the applications for condonation of delay, this Court has justifiably advocated
adoption of a liberal approach in condoning the delay of short duration and a stricter approach
where the delay is inordinate."

21. In Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012) 5 SCC 157,
the Apex Court in paragraph 23 and 24 of the report opined:

"23. What needs to be emphasised is that even though a liberal and justice-oriented
approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act
and other similar statutes, the courts can neither become oblivious of the fact that the successful
litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is
consumed at various stages of litigation apart from the cost.

24. What colour the expression "sufficient cause" would get in the factual matrix
of a given case would largely depend on bona fide nature of the explanation. If the court finds that
there has been no negligence on the part of the applicant and the cause shown for the delay does not
lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the
applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion not to condone the delay."

22. From the discussions above, the following principles of law emerge:

(i) when the period of limitation prescribed has expired the decree-holder has
obtained a benefit under the law of limitation to treat that decree as beyond challenge, and this legal
right which has accrued to the decree-holder by lapse of time, should not be light-heartedly
disturbed.

(ii) if sufficient cause for excusing delay is shown discretion is given to the court to
condone delay and admit the appeal.

(iii) The proof of a sufficient cause is a condition precedent for exercise of the
discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing
further has to be done; the application for condoning delay has to be dismissed on that ground
alone.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
(iv) Even after sufficient cause has been shown a party is not entitled to the
condonation of delay in question as a matter of right.

(v) If sufficient cause is shown then the court has to enquire whether in its
discretion it should condone the delay. For this purpose all relevant facts have to be considered and
it is at this stage that diligence of the party or its bona fides may fall for consideration.

(vi) What constitutes sufficient cause cannot be laid down by hard-and-fast rules.

(vii) The term "sufficient cause" has to be liberally construed.

(viii) Length of delay is no matter, acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range may be uncondonable 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.

(ix) Once the court accepts the explanation as sufficient, normally the superior
court should not disturb such finding, unless the exercise of discretion was on wholly untenable
grounds or arbitrary or perverse.

(x) Considerations of bona fides or due diligence are always material and relevant
when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing
with such applications the court is called upon to consider the effect of the combined provisions of
Sections 5 and 14.

(xi) The law of limitation is founded on public policy. The legislature does not
prescribe limitation with the object of destroying the rights of the parties but to ensure that they do
not resort to dilatory tactics and seek remedy without delay.

23. In the light of the settled legal proposition, as mentioned above, it is to be seen whether
the respondents had offered any plausible/tangible explanation for the inordinate delay of more
than eight years in filing the appeal and as to whether the appellate court was justified in condoning
the delay in the peculiar facts of the present case.

24. A perusal of the impugned judgment dated 31.05.2013 would show that the learned
Additional District Judge, after reproducing the contents of the application for condonation of
delay, has referred to the judgments cited by the contesting parties and, has thereafter, condoned
the delay of more than eight years by making a cryptic observation that the cause shown was
sufficient and has thereby allowed the application for condonation of delay moved by the
respondent nos. 2 to 8 under Sections 5 & 14 of the Limitation Act without adverting to the
averments contained therein. Moreover, in the impugned judgment there is no whisper about the
objections preferred by the petitioners. It is not possible to fathom any reason why the court below
has omitted to consider the detailed objections which were, admittedly, filed by the petitioners.
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1019
25. The appellate court was not bound to readily accept whatever was stated on behalf of
the private respondents to explain the delay. The court below was obliged to examine the
correctness of the explanation given by the respondent nos. 2 to 8, keeping in view the principles
laid down by the Apex Court in several cases and the objections preferred by the petitioners and
consider the same on merits and then express an opinion, one way or the other. It is quite
unfortunate that the Court below has condoned the delay of more than eight years without dealing
with the explanation given by the respondent nos. 2 to 8 and the objections preferred by the
petitioners against the said application.

26. The application for condonation of delay was moved by the respondent nos. 2 to 8
under Section 14 and Section 5 of the Limitation Act. The learned Additional District Judge has
condoned the delay of more than eight years by mechanically extending the benefit of Section 14 of
the Act. The impugned order is liable to be set aside on this ground alone.

27. It is settled that even though the provisions of Section 14 of the Limitation Act per se
may not be applicable but the principles thereof would be applicable for the purpose of condonation
of delay in filing the appeal in terms of Section 5 of the said Act but for that purpose the respondent
nos. 2 to 8 were obliged to establish that they were prosecuting with due diligence some remedy
with respect to the matter in dispute before a court of law.

28. The delay of more than eight years in filing the appeal has been explained by the
private respondents by stating that against the judgment and order dated 05.11.2004, an application
under Order 9 Rule 13 CPC for recall of the said order was moved, which was dismissed on
14.03.2008; the appeal against the order dated 14.03.2008 was dismissed on 23.01.2009; the writ
petition against the order dated 14.03.2008 and 23.01.2009 was dismissed by this Court on
20.07.2012; and thereafter, on coming to know about the subsequent order dated 20.07.2012 passed
by this Court in Writ Petition No. 595 of 2009 and after talking to their counsel and after obtaining
copies of the order dated 20.07.2012 passed by this Court they came to know about the order dated
20.07.2012 passed in Writ Petition No. 595 of 2009 and immediately thereafter the appeal was filed
by them on 13.03.2013. In these circumstances it was stated by the private respondents that they
were entitled to exclude the period during which the application under Order 9 Rule 13 CPC, the
appeal against the order rejecting the application under Order 9 Rule 13 CPC and the writ petition
were pending before this Court.

29. In so far as respondent nos. 2 and 4 to 8 are concerned, admittedly, no proceeding
against the judgment and order dated 05.11.2004 was taken up by them in any court of law till the
time of filing of appeal and as such the 14 of the Limitation Act or the principles akin thereto
cannot be relied upon for exclusion of the period during which the application under Order 9 Rule
13 CPC moved by respondent no. 3 for recall of the order dated 05.11.2004 before the Prescribed
Authority; the appeal against the order dated 14.03.2008 before the Appellate Authority and the
writ petition preferred by the respondent no 3 remained pending before this Court. Thus, there is no
explanation, what to say of satisfactory explanation, on behalf of respondent nos. 2 and 4 to 8 for
the inordinate delay in filing the appeal. In fact, the way in which the application for condonation
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
of delay has been drafted, it is apparent that the respondent nos. 2 to 8 have tried to mislead this
Court by claiming benefit of section 14 of the Limitation Act. The application for condonation of
delay in so far as the respondent nos. 2 and 4 to 8 are concerned was liable to be dismissed outright.

30. In so far as respondent no. 3 is concerned, an application under Order 9 Rule 13 CPC
for recall of the exparte judgment dated 05.11.2004 was filed by him on 11.03.2005 along with an
application for condonation of delay. The delay, however, was condoned on 01.10.2007 but,
subsequently, the application dated 11.03.2005 was dismissed by the Prescribed Authority on
14.03.2008. Against the order dated 14.03.2008 the respondent no. 3 preferred an appeal under
Section 22 of the Act.

31. An objection regarding the maintainability of the appeal under Section 22 of the 1972
Act against the order dated 14.03.2008 was taken by the petitioners at the earliest possible
opportunity. Despite the settled legal position, the respondent no. 3, continued to pursue the appeal
preferred by him under Section 22 of the Act. On 23.01.2009, the appeal preferred by the
respondent no. 3 against the judgment and order dated 05.11.2004 was dismissed by the Additional
District Judge, Hardoi as not maintainable. While dismissing the appeal, the learned Additional
District Judge had categorically recorded that the counsel for the respondent nos. 3 was not able to
rebut the settled legal position that an appeal under Section 22 of 1972 Act against an order
rejecting an application for recall of an ex parte order of release under section 21 of the 1972 Act
was not maintainable. The relevant part of the order dated 23.01.2009 passed by the Additional
District Judge in Misc. Civil Appeal No. 15 of 2008 is extracted below:-

"The Supreme Court in the case of M/s Ram Narain P. Ltd. v. Sttae Trading
Corporation of India Ltd. AIR 1983 SC 786 held:

"The right to prefer an appeal is created by Statute. No party can file an appeal
against any judgment, decree or order as a matter of course in the absence of a suitable provision of
some law conferring on the party concerned the righ tot file appeal against any judgment, decree or
order." (4) Similarly, the Allahabad High Court in the case of Smt. Dhooran alias Ghooran v. The
District Judge, Kanpur and others ARC 1982 (1) 197 held:

"An appeal is always creature of Statue. Section 22 under which the petitioner filed
the appeal provides for appeal against the order passed under Section 21. No appeal is provided
under the Act against an order rejecting an application for setting aside of an ex parte order of
release."

(5) Thus since the Act does not provide any appeal against the order passed under
Rule 34, the provisions of the Civil Procedure Code can not be taken aid of. The Allahabad High in
number of case has held that appeal against the order passed under Rule 34 is not maintainable.
5 All. Laxmi Narain Gupta & Ors. Vs Additional District Judge, Court No.3, Hardoi & Ors.

1021
(6) The learned counsel of the appellant has not been able to rebut this legal
position by producing any contrary binding authority and all the rulings referred to by him
are on the factual aspect of the matter/controversy.

(7) Thus very clearly the miscellaneous civil appeal, filed under Order 43 Rule
1(d) of the Civil Procedure Code, is not maintainable. And the only remedy is by way of appeal
under Section 22 of the Act.

(8) Since this miscellaneous civil appeal is not maintainable, hence it is not at all
necessary for this Court to enter into the factual controversy or to examine the legality of the
impugned order of the learned civil judge.

9. On the basis of above discussion, the miscellaneous civil appeal is liable to be
dismissed.
ORDER

The miscellaneous civil appeal no. 15 of 2008 is hereby dismissed with costs.

(Emphasis supplied)

32. Knowing fully well that the appeal against the order rejecting an application for setting
aside of an ex parte order was not maintainable, the respondent no. 3 preferred a writ petition
before this Court challenging the judgment and order dated 05.11.2004 as well as the order dated
23.01.2009 mentioned above. And then at the time of hearing of the writ petition, it was conceded
by the counsel for the respondent no. 3 that the appeal in so far as order dated 14.03.2008 was
concerned, was not maintainable. Paragraph 11 of the order dated 20.07.2012 passed by this Court
is quoted below:-

"Sri M.A. Khan, learned Senior Advocate, fairly conceded that so far as the view
taken by Appellate Court, respondent no. 1, that appeal against the order dated 14.03.2008 was not
maintainable cannot be faulted and it appears that petitioner under a mistaken, wrong legal advice
filed such appeal though it was not maintainable."

33. On the undisputed facts, mentioned above, it is clear that an appeal under section 22 of
the 1972 Act, against an order rejecting an application for recall of an ex parte order of release
passed under section 21 of the said Act was not maintainable. The objection as to the
maintainability of the appeal was taken by the petitioners at the very initial stage but that was
resisted and the respondent no. 3 invited a decision by the Appellate Court. Even though the
respondent knew fully well that the appeal filed by him under section 22 was not maintainable, the
respondent no. 3 took the risk of filing a writ petition before this Court and at the time of hearing of
the said writ petition it was conceded on behalf of the respondent no. 3 that the appeal under
section 22 of the 1972 Act against the order dated 14.03.2008 was not maintainable. In the
circumstances, it cannot be said that the respondent no. 3 was prosecuting the previous proceeding
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
with due diligence and good faith and as such there is no justification in extending the benefit of
section 14 of the Limitation Act or the principles akin thereto for excluding the period during
which the respondent no. 3 was prosecuting the previous proceedings.

34. Apart from the above, in paragraph 5 of the application for condonation of delay it has
been stated that after Form-B was issued in the execution proceedings, the private respondents took
the opinion of their newly appointed advocate who in turn, on 11.03.2013, spoke to the counsel
who was conducting the Writ Petition No. 595 of 2009 in this Court and thereafter they obtained a
copy of the judgment and decree dated 05.11.2004 and then on 12.03.2012 they obtained a certified
copy of the subsequent order dated 20.07.2012 passed in Writ Petition No. 595 of 2009, and then
they came to know about the said order and from the date of knowledge the appeal was within time.

35. The averments made in paragraph 5 of the application for condonation of delay are
completely vague. In the application for condonation of delay the date on which the order dated
20.7.2012 by means of which the writ petition was dismissed by this Court has not been mentioned.
It is not the case of the respondent no. 3 that the order dated 20.07.2012 was not communicated to
him by his counsel immediately after the said order was passed by this Court. The date on which
the respondent nos. 3 came to know about the order dated 20.07.2012 is conspicuously missing. In
paragraph 5 of the application it has been stated that the respondents came to know about the
subsequent order dated 20.07.2012 passed by this Court after Form 'Gha' was issued in the
execution proceedings and he contacted his counsel in this Court on telephone on 11.03.2013. It is
not possible to believe that the respondent no. 3 was not aware of the order dated 20.7.2012 passed
by this court in his writ petition on the very date the order was passed or immediately thereafter.

36. The story narrated by the respondent nos. 2 to 8 in paragraph 5 of the application for
condonation of delay is a concocted story for the simple reason that in paragraph 11 of the counter
affidavit the respondent nos. 2 to 8 have put forward a different version altogether. Paragraph 11 of
the counter affidavit is quoted below:-

"11: That in reply to para-9 of the writ petition, it is stated that after the judgment
dated 20.07.2012 passed by this Hon'ble Court, the deponent instructed the counsel, namely, Sri
Ajay Dwivedi, Advocate to file an appeal but on one or the other pretext, despite giving verbal
assurances to file the appeal, he had not filed the same, with the result, the deponent by engaging
another counsel filed an appeal against the exparte judgment dated 05.11.2004 passed by the
Prescribed Authority in P.A. Case No. 9 of 1999 along with an application under Section 5 read
with Section 14 of the Indian Limitation Act. A copy of the memo of appeal and the application
under Section 5 read with Section 14 of the Indian Limitation Act have been filed as annexure no. 6
and 7, the contents whereof can be ascertained from the same and anything inconsistent therewith
is denied."

37. Apart from the above the conduct of the respondents has not been bona fide throughout.
On the contrary they have been grossly negligent. The respondent nos.