# Malhan & Ors v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-07
- **Case number:** Civil Misc. Review Application No. 22 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malhan-ors-v-state-of-u-p-anr-48317
- **Pages:** 6

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Section 114 - review-review
application filed with a delay of about 6
years-the appeal came to be partly
allowed way back in the year 2016-the
kind of explanation rendered that they
were not aware of the legal provisions or
delay due to covid-19 herein does not
satisfy the observations of the Apex
Court-this is a case which shows complete
careless and reckless long delay on the
part of applicants which has remained
virtually
unexplained
at
all-Thus,
no
reason to exercise judicial discretion to
justify condonation of delay in the present
case-delay defeats equity-the court help
those who are vigilant and do not slumber
over their rights.(Para 1 to 20)

B. There is no presumption that delays in
approaching
the
court
is
always
deliberate.
No
person
gains
from
deliberate delaying a matter by not
resorting
to
take
appropriate
legal
remedy within time but then words
"sufficient cause" show that delay if any,
occurred,
should
not
be
deliberate,
negligent and due to casual approach of
concerned litigant, but it should be bona
fide. Lapse on the part of litigant in
approaching
Court
within
time
is
understandable but total inaction for
long
period
of
delay
without
any
explanation whatsoever and that too in
absence of showing any sincere attempt
on the part of suiter, would add to his
negligence, and would be relevant factor
going against him.(Para 7 to 16)

The application is dismissed. (E-6)

List of Cases cited:

## Text

4 All. Malhan & Ors. Vs. State of U.P. & Anr.
299
he incurred all the expenses of treatment.
Further the learned trial Court has rightly
reached to the conclusion that at the time of
alleged demand Honda Passion Motorcycle
was not launched in the market as the letter
of the concerned Agency has been filed by
the appellant on the record in the Court,
wherein it has been mentioned that Honda
Passion Motorcycle was launched in the
market in the year 2001: Hence the learned
trial Court has rightly came to the
conclusion that the ingredients required
under Section 304 B have not been
established as to raise the presumption
under Section 113-B of Indian Evidence
Act against the appellants / accused. In
such a situation the learned trial Court
rightly acquitted the appellant/accused
persons. There appears no error in the
findings of the learned trial Court further
more the view taken by the learned trial
Court is a possible view. Thus there appears
no convincing reason to interfere with the
acquittal recorded by the learned trial
Court. Hence this appeal deserves dismissal
and is dismissed accordingly.
----------
(2022)04ILR A299
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

Civil Misc. Review Application No. 22 of 2022
In
First Appeal Defective No. 817 of 2000

Malhan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Madan Mohan Chaurasisa

Counsel for the Opposite Parties:

A. Civil Law - Code of Civil Procedure,
1908 - Section 114 - review-review
application filed with a delay of about 6
years-the appeal came to be partly
allowed way back in the year 2016-the
kind of explanation rendered that they
were not aware of the legal provisions or
delay due to covid-19 herein does not
satisfy the observations of the Apex
Court-this is a case which shows complete
careless and reckless long delay on the
part of applicants which has remained
virtually
unexplained
at
all-Thus,
no
reason to exercise judicial discretion to
justify condonation of delay in the present
case-delay defeats equity-the court help
those who are vigilant and do not slumber
over their rights.(Para 1 to 20)

B. There is no presumption that delays in
approaching
the
court
is
always
deliberate.
No
person
gains
from
deliberate delaying a matter by not
resorting
to
take
appropriate
legal
remedy within time but then words
"sufficient cause" show that delay if any,
occurred,
should
not
be
deliberate,
negligent and due to casual approach of
concerned litigant, but it should be bona
fide. Lapse on the part of litigant in
approaching
Court
within
time
is
understandable but total inaction for
long
period
of
delay
without
any
explanation whatsoever and that too in
absence of showing any sincere attempt
on the part of suiter, would add to his
negligence, and would be relevant factor
going against him.(Para 7 to 16)

The application is dismissed. (E-6)

List of Cases cited:
1. Narendra & ors.. Vs St. of U.P. & ors.. (2017)
9 SCC 426

2. Collector, Land Acquisition Vs Katiji (1987) 2
107
300 INDIAN LAW REPORTS ALLAHABAD SERIES
3. P.K. Ramachandran Vs St. of Ker. (1998) AIR
SC 2276

4. Shakuntala Devi Jain Vs Kuntal Kumari (1969)
AIR SC 575

5. Brij Indar Singh Vs Kanshi Ram (1918) ILR 45
Cal 94

6. Nagaland Vs Lipok AO & ors.. (2005) AIR SC
2191

7. Vedabai @ Vaijayanatabai Baburao Vs
Shantaram Baburao Patil & ors. (2001) JT 5 SC
608

8. Pundlik Jalam Patil (dead) by LRs Vs
Executive Engineer, Jalgaon Medium Project &
Anr (2008) 17 SCC 448

9. Maniben Devraj Shah Vs Municipal Corp. of
Brihan Mumbai (2012) 5 SCC 157

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Vivek Varma, J.)

In re: Civil Misc. Delay Condonation
Application No. Nil of 2022

1. This is an application filed under
Section 5 of the Limitation Act, 1963
(hereinafter referred to as the "Act, 1963")
seeking condonation of delay in filing the
review application, which is reported to
have been filed with a delay of 1900 days
i.e. about six years.

2. The review-applicants are co-share
holders and they have preferred the instant
review application under Section 114 of the
Code of Civil Procedure, 1908 read with
Chapter V Rule 12 of the Allahabad High
Court Rules. The judgment under review
was passed on 06.10.2016 in First Appeal
Defective No. 817 of 2000 (Malhan v. State
of U.P. and another). It is stated that they
were not in a position to file the review as
they were not aware of the legal provisions.
The appeal came to be partly allowed way
back in the year 2016 and the appellantsapplicants were awarded compensation of
Rs.297/- per square yard. Just because in
Village Kakrala, the Apex Court had
determined compensation of Rs.449/- per
square yard, the applicants preferred this
review application. The applicants have
also stated that they could not file the
review application within time due to the
blockage of public transportation on
account of COVID-19 guidelines.

3. The appeals were disposed of by
the Apex Court in the year 2016. The
pandemic struck India only in 2020-2021.
It cannot be said as stated in Paragraph No.
8 of the affidavit filed in support of the
delay condonation application that due to
the guidelines of the Central Government
and the State Government the public
transportation was blocked, therefore, the
applicants could not come to Allahabad to
file the review. The decision in Narendra
and others Vs. State of U.P. and others,
(2017) 9 SCC 426, cannot be of any avail
to the appellants. The delay in filing the
review application is absolutely deliberate.
There is no reason why the appellants, who
are sixteen in number, waited for six long
years.

4. We have heard Sri Madan Mohan
Chaurasiya, learned counsel for the review
applicants, and requested him to explain the
delay in filing the review application, to
which he gave a strange reply that he
advised his clients that they may take a
chance by filing this review application
after a period of six years. We are pained to
note that an advocate should not give such
an advise when there is no error apparent
on the face of record nor was there any
4 All. Malhan & Ors. Vs. State of U.P. & Anr.
301
other reason that why the matter be reagitated after it was finally decided.

5. In the present case, not only the
appeal was heard and decided on merits but
the legal heirs of the deceased appellants
were also gracefully permitted by the Court
to be substituted. The facts of the case will
not permit us to condone the delay in filing
the review application for the reasons
which are given in the undermentioned
paragraph.

6. Recently, the Apex Court has held
that after transfer or retirement of a Judge,
it is not good to file a review application
without any rhyme or reason. In the instant
case, the delay in filing the substitution
application was condoned on 06.10.2016,
and by the same order the appeal was also
decided as the identical issue arising out of
same reference order was involved in First
Appeal No. 31 of 2011, which came to be
decided with the same directions way back
in the year 2014. We do not find any reason
to condone the delay of six years, which is
not explained as to why this review
application is filed after such an inordinate
delay. It is not even pointed out that other
litigants had moved the Supreme Court or
there is any other order, which can be
followed by us, or which may be a
subsequent order of the Apex Court that
may guide us.

7. The expression "sufficient cause"
in Section 5 of Act, 1963 has been held to
receive a liberal construction so as to
advance substantial justice and generally a
delay
in
preferring
appeal
may
be
condoned in interest of justice where no
gross negligence or deliberate inaction or
lack of bona fide is imputable to parties,
seeking condonation of delay. In Collector,
Land Acquisition Vs. Katiji, 1987(2)
SCC 107, the Court said, that, when
substantial
justice
and
technical
considerations are taken 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. The
Court
further
said
that
judiciary
is
respected not on account of its power to
legalise injustice on technical grounds but
because it is capable of removing injustice
and is expected to do so.

8. In P.K. Ramachandran Vs. State
of Kerala, AIR 1998 SC 2276 the Court
said:

"Law of limitation may harshly
affect a particular party but it has to be
applied with all its rigour when the statute
so prescribe and the Courts have no power
to extend the period of limitation on
equitable grounds."

9. The Rules of limitation are not
meant to destroy rights of parties. They
virtually take away the remedy. They are
meant with the objective that parties should
not resort to dilatory tactics and sleep over
their rights. They must seek remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The statute relating
to limitation determines a life span for such
legal remedy for redress of the legal injury,
one has suffered. Time is precious and the
wasted time would never revisit. During
efflux of time, newer causes would come
up, necessitating newer persons to seek
legal remedy by approaching the courts. So
a life span must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential
anarchy.
The
statute
providing limitation is founded on public
302 INDIAN LAW REPORTS ALLAHABAD SERIES
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). It is for this reason that when an
action becomes barred by time, the Court
should be slow to ignore delay for the
reason that once limitation expires, other
party matures his rights on the subject with
attainment of finality. Though it cannot be
doubted that refusal to condone delay
would result in foreclosing the suiter from
putting forth his cause but simultaneously
the party on the other hand is also entitled
to sit and feel carefree after a particular
length of time, getting relieved from
persistent and continued litigation.

10. There is no presumption that
delay in approaching the court is always
deliberate. No person gains from deliberate
delaying a matter by not resorting to take
appropriate legal remedy within time but
then the words "sufficient cause" show that
delay, if any, occurred, should not be
deliberate, negligent and due to casual
approach of concerned litigant, but, it
should be bona fide, and, for the reasons
beyond his control, and, in any case should
not lack bona fide. If the explanation does
not smack of lack of bona fide, the Court
should show due consideration to the suiter,
but, when there is apparent casual approach
on the part of suiter, the approach of Court
is also bound to change. Lapse on the part
of litigant in approaching Court within time
is understandable but a total inaction for
long
period
of
delay
without
any
explanation whatsoever and that too in
absence of showing any sincere attempt on
the part of suiter, would add to his
negligence, and would be relevant factor
going against him.

11. We need not to burden this
judgment with a catena of decisions
explaining and laying down as to what
should be the approach of Court on
construing "sufficient cause" under Section
5 of Act, 1963 and it would be suffice to
refer a very few of them besides those
already referred.

12. In Shakuntala Devi Jain Vs.
Kuntal Kumari, AIR 1969 SC 575 a three
Judge Bench of the Court said, that, unless
want of bona fide of such inaction or
negligence as would deprive a party of the
protection of Section 5 is proved, the
application must not be thrown out or any
delay cannot be refused to be condoned.

13. The Privy Council in Brij Indar
Singh Vs. Kanshi Ram ILR (1918) 45 Cal
94 observed that true guide for a court to
exercise the discretion under Section 5 is
whether the appellant acted with reasonable
diligence in prosecuting the appeal. This
principle still holds good inasmuch as the
aforesaid decision of Privy Council as
repeatedly been referred to, and, recently in
State of Nagaland Vs. Lipok AO and
others, AIR 2005 SC 2191.

14. In Vedabai @ Vaijayanatabai
Baburao Vs. Shantaram Baburao Patil
and others, JT 2001(5) SC 608 the Court
said that under Section 5 of Act, 1963 it
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. In the
former case 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 and the basic
guiding
factor
is
advancement
of
substantial justice.
4 All. Malhan & Ors. Vs. State of U.P. & Anr.
303

15. In Pundlik Jalam Patil (dead) by
LRs Vs. Executive Engineer, Jalgaon
Medium Project and Anr. (2008) 17 SCC
448, in para 17 of the judgment, the Court
said :

"...The
evidence
on
record
suggests neglect of its own right for long
time in preferring appeals. The court
cannot enquire into belated and state
claims on the ground of equity. Delay
defeats equity. The court helps those who
are vigilant and "do not slumber over their
rights."

16. In Maniben Devraj Shah Vs.
Municipal
Corporation
of
Brihan
Mumbai, 2012 (5) SCC 157, in para 18 of
the judgment, the Court said as under:

"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. 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. In cases involving the State and its
agencies/instrumentalities, the Court can
take note of the fact that sufficient time is
taken in the decision making process but no
premium can be given for total lethargy or
utter negligence on the part of the officers
of
the
State
and
/
or
its
agencies/instrumentalities
and
the
applications filed by them for condonation
of delay cannot be allowed as a matter of
course by accepting the plea that dismissal
of the matter on the ground of bar of
limitation will cause injury to the public
interest."

17. In our view, the kind of
explanation rendered herein does not
satisfy the observations of Apex Court that
if delay has occurred for reasons which
does not smack of mala fide, the Court
should be reluctant to refuse condonation.
On the contrary, we find that here is a case
which shows a complete careless and
reckless long delay on the part of applicants
which has remained virtually unexplained
at all. Therefore, we do not find any reason
to
exercise
our
judicial
discretion
exercising judiciously so as to justify
condonation of delay in the present case.

18. Even on merits, we find no reason
to interfere with the well reasoned
judgment of the Court. Hence, the review
application is also liable to be dismissed.

19. In view of the above, we dismiss
the delay condonation application with a
token cost of Rs.10,000/-.

20.

Consequently,
the
review
application is also dismissed as we have
refused to condone the delay.

(Delivered by Hon'ble Dr.
Kaushal Jayendra Thaker, J.

&
304 INDIAN LAW REPORTS ALLAHABAD SERIES

Hon'ble Vivek Varma, J.)

1. Since this review application has
been filed beyond time and application
seeking condonation of delay has been
rejected vide order of date, this review
application stands dismissed being barred
by limitation.

2. For order, see our order of the date
passed on Civil Misc. Delay Condonation
Application No. Nil of 2022.
----------
(2022)04ILR A304
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1273 of 2022

Ram Kishor Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Himanshu Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 311 -
Indian Penal Code, 1860 - Sections 498A, 304-B - Dowry Prohibition Act, 1961Section 3⁄4-rejection-recall of witnessquestion framed by the applicant in
which the applicant want to crossexamination of the PW-1 was already
done before 20 years ago-the case was
pending for last 20 years-Calling of
witnesses for cross-examination after
long gap is deprecated by Apex CourtTrial
court
rightly
rejected
the
application u/s 311 Cr.P.C. to recall the
witness.(Para 1 to 11)
B. Any court may, at any stage of any
inquiry or other proceeding under this
code summon any person as a witness, or
examine any person in attendance, though
not summoned as a witness, or recall and
re-examine any person already examined
if it is essential to the just decision of the
case.(Para 6,7)

The application is dismissed. (E-6)

List of Cases cited:

1. Rajaram Prasad Yadav Vs St. of Bih. & ors.
AIR SC 3081

2. Vinod Kumar Vs St. of Punj. (2015) 3 SCC
220
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This application under Section 482
Cr.P.C. has been filed with a prayer to pass
an order or direction thereby quashing the
impugned order dated 22.2.2022 S.T. No.
674 of 2001 (State Vs. Pramod Kumar
Singh and others) initiated on the basis of
case crime no. 64 of 2001 under Sections
498-A, 304-B I.P.C. and 3/4 of the D.P. Act
Police Station- Saraini, District- Raibareli.

2. Learned counsel for the applicants
submitted that marriage of the sister of the
respondent no. 2 namely Smt. Suman Singh
was solemnized on 19.4.2000 and due to an
accident she was died while cooking on
25.5.2001 and due to which respondent no.
2 has lodged an F.I.R. as case crime no. 64
of 2001 under Sections 498-A, 304-B and
3/4 of the D.P. Act. Police Station- Saraini,
District- Raibareli. After recording the
statement of the accused under Section 313
Cr.P.C.
trial
was
fixed
for
defence
evidence. During the pendency of this trial
an application under 311 Cr.P.C. for
summoning and cross examination of P.W.-
1 i.e. respondent no. 2 was moved on