# Ms. Supreme Transport Co., Lucknow v. Smt. Suman Devi & Anr

- **Citation:** (2024) 10 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-16
- **Case number:** First Appeal From Order Defective No. 129 of 2024
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-supreme-transport-co-lucknow-v-smt-suman-devi-anr-51103
- **Pages:** 7

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Sections 165, 166 & 140 - Condonation of
delay - Plea of Pardanashin lady not taken
in affidavit filed along with application for
condonation of delay, but such was taken
in
supplementary
affidavit
without
disclosing as to she was Pardanashin lady
- Not taken earlier before Tribunal - A
litigant, who was negligent that he/she
would not inquire for status of case for
such a long period in which allegations are
against him/her and he/she has put in
appearance and filed written St.ment and
documents,
was
not
prevented
from
preferring appeal in time - Appellant failed
to
show
even
a
single
ground
for
condonation of such a long delay of 3107
days and destroy right of parties - Failed
to disclose that who was person on whose
shoulder he has put burden of such a long
delay even for period of four years after
his death, therefore, grounds are nothing
but concocted story to get delay of such a
long
period
condoned
in
matter
of
accident claim, in which he had contested
case
throughout
and
after
affording
sufficient opportunity of hearing, tribunal
passed impugned award. (Para 7, 8, 14)
Appeal Dismissed. (E-13)

List of Cases cited:

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES

A.
There
are
material
contradictions
in
the
statement
of
informant-PW-1 and eye-witness- PW-6.

B. The prosecution has failed to
explain why no FIR was registered with
regard to murder of Muddu, brother of the
appellant, who according to PW-6 had a
scuffle with deceased - Dinesh at the place
of incident when, deceased Dinesh, brother
of informant, was fired by the appellant and
murdered.

C. It is the case of the prosecution
that many people at the spot caught hold of
Muddu and gave him merciless beatings
with sticks and iron rods which resulted
into breaking of all the bones of his body,
he was murdered at the spot but no police
action was taken despite a cognizable
offence was committed.

D. The appellant was never
arrested at the spot and was arrested after
one year of incident and no firearm was
recovered from him.

E. The police did not recover any
empty cartridge at the spot and never sent it
for forensic examination.

F. As per PW-1, the firearm
injury was caused to deceased Dinesh from
point blank range whereas the statement of
PW-2- Doctor who conducted the postmortem reflects that no blackening or
tattooing was found which show that the
fire was shot from a distance.

G. As per the I.O., PW-3, he first
prepared the Panchayatnama of Muddu,
brother of appellant, and then of Dinesh,
brother of the informant. Even PW-2, Dr.
Narendra Kumar who conducted the postmortem stated that he first conducted the
post-mortem of Muddu and then of Dinesh,
which raises a suspicion that Muddu was
murdered prior to murder of Dinesh and in
the absence of any FIR or investigation
being conducted regarding death of Muddu
who was beaten to death by the mob at the
spot, it is apparent that no proper
investigation was conducted by the police.
Therefore, the appellant is entitled to be
given benefit of doubt.

H. Lastly, the appellant is in
judicial custody for 17 years of actual
sentence and 20 years of total sentence with
remission, having no criminal history, as
per the State police is entitled to pre mature
release but is case was never processed.

37. In view of above, we allow this
appeal and set aside the impugned
judgment of conviction and order of
sentence.

38. The appellant who is in judicial
custody be released forthwith, if he is not
involved in any other case.

39. Record and proceedings of the
Trial Court be transmitted to it forthwith.

40. The fee of Sri Ajay Shankar,
learned legal aid counsel, be released by
the
High
Court
Legal
Services
Committee.
----------
(2024) 10 ILRA 12
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.10.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order Defective No. 129 of
2024

Ms. Supreme Transport Co., Lucknow
 ...Appellant
Versus
Smt. Suman Devi & Anr. ...Respondents

Counsel for the Appellant:
Afaq Zaki Khan
10 All. Ms. Supreme Transport Co., Lucknow Vs. Smt. Suman Devi & Anr.
13
Counsel for the Respondents:

Civil Law - Motor Vehicle Act, 1988 -
Sections 165, 166 & 140 - Condonation of
delay - Plea of Pardanashin lady not taken
in affidavit filed along with application for
condonation of delay, but such was taken
in
supplementary
affidavit
without
disclosing as to she was Pardanashin lady
- Not taken earlier before Tribunal - A
litigant, who was negligent that he/she
would not inquire for status of case for
such a long period in which allegations are
against him/her and he/she has put in
appearance and filed written St.ment and
documents,
was
not
prevented
from
preferring appeal in time - Appellant failed
to
show
even
a
single
ground
for
condonation of such a long delay of 3107
days and destroy right of parties - Failed
to disclose that who was person on whose
shoulder he has put burden of such a long
delay even for period of four years after
his death, therefore, grounds are nothing
but concocted story to get delay of such a
long
period
condoned
in
matter
of
accident claim, in which he had contested
case
throughout
and
after
affording
sufficient opportunity of hearing, tribunal
passed impugned award. (Para 7, 8, 14)
Appeal Dismissed. (E-13)

List of Cases cited:

1. Maniben Devraj Shah Vs Municipal Corpn. of
Brihan Mumbai, (2012) 5 SCC 157, (Para 24, 25)

2. K.B. Lal (Krishna Bahadur Lal) Vs Gyanendra
Pratap & ors.; 2024 (42) LCD 828, (Para 10)

3. Sheo Raj Singh & ors.Vs U.O.I.& anr..; (2023)
10 SCC 531, (Para 31, 32)

4. N. Balakrishnan Vs M. Krishnamurthy; AIR
1998 Supreme Court 3222
(Delivered by Hon'ble Rajnish Kumar, J.)

(Application No.IA/1/2024)

1. Heard Shri Aftab Zaki Khan,
learned counsel for the appellant.

2. This highly belated F.A.F.O. under
Section 173 of the Motor Vehicles Act,
1988 has been preferred against the
judgment and order dated 01.01.2014
passed in claim petition no.276 of 2012
(Suman Devi Vs. M/S Supreme Transport
Company and Another) under Section- 165,
166 and Section 140 of Motor Vehicle Act,
1988 by Motor Accident Claim Tribunal/
District Judge, Lucknow alongwith an
application for condonation of delay in
filing appeal.

3. The office has reported a delay of
3107 days in filing the appeal. The appeal
under Section 173 of Motor Vehicles Act,
1988 may be preferred within ninety days
from the date of award. Second proviso to
Section 173 provides that the High Court
may entertain the appeal after the expiry of
the said period of ninety days, if it is
satisfied that the appellant was prevented
by sufficient cause from preferring the
appeal in time. Therefore, this Court has to
see as to whether the appellant was
prevented
by
sufficient
cause
from
preferring the appeal within time or not.

4. The ground for condonation of
delay has been given in paragraph nos.3, 4
and 5, which are extracted here-in-below:-

"3. That, in this case during
pendency of claim petition after filing the
objection against the claim petition counsel
of appellant has never informed the
appellant about the status of the claim
petition.

4. That, One Sri. Sujaudin was
doing pairvi from the side of appellant and
he expired 4 years ago.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

5. That, the appellant was not
aware about the Judgement and award
dated 01-01-2014 and first time he came to
know about the judgement when recovery
notice has been issued on 22-07-2024 and
served upon him on 30-07-2024. Copy of
recovery letter and notice are being
annexed as annexure no.1 to this affidavit."

5. Since the ground was not sufficient
for such a long delay, therefore, the
appellant after arguing at some length had
prayed for and was granted time on the last
date for filing better affidavit in support of
the application for condonation of delay.
The appellant has filed a supplementary
affidavit in support of application for
condonation of delay. The supplementary
affidavit indicates further grounds in
paragraph nos.3 and 4, which are extracted
here-in-below:-

"3. That, one Shujauddin, who
was doing pairavi on behalf of the
appellant before the M.A.C.T expired on
21.07.2020 but his family member could
not obtain the Death Certificate from
Nagar Nigam as such it was not necessary
for them.

4. That, it is also pertinent to
mention
here
that
Appellant
is
a
Pardanashin Lady and Husband of the
Appellant namely Mohammad. Laiq Khan
has also expired during Covid-19 on
20.05.2021, as such appellant was in
Trauma, therefore delay has been caused."

6. In view of above, it is apparent that
no ground for condonation of such a long
period has been given. Only pleas have
been taken that the counsel had never
informed about status of claim petition and
one Shri Sujauddin was doing pairvi from
the side of the appellant and he died four
years ago. Who was Sujauddin and why he
was doing Pairvi on behalf of the appellant,
when the case was contested by the
appellant before the tribunal by filing
written
statement
and
the
relevant
documents on record and husband of
appellant was alive, have not been
disclosed? Even otherwise, as per own
admission of the appellant, the said
Sujauddin had died on 21.07.2020 i.e. after
more than six years of passing of the
impugned judgment and award and since
then also more than four years have passed.
Therefore firstly it has not been disclosed
as to who was Sujauddin and why he was
doing Pairvi. Even if any such person was
doing Pairvi, then the plea that the counsel
had not informed about claim petition to
the appellant is not tenable. Secondly, if
any such person was doing Pairvi, this
Court is unable to comprehend that he
would not have told to the appellant about
the status of claim petition because without
instruction and support of the appellant he
would not have been doing Pairvi of case.
Even otherwise if the appellant had not
tried to know about the status of case for
such a long period and even after his death
in 2020, the appellant has been thorough
negligent in doing Pairvi of case and it can
not be said that the appellant was prevented
from sufficient cause in preferring appeal
in time.

7. Plea of Pardanashin lady was not
taken in the affidavit filed in support of the
application for condonation of delay but a
plea has been taken in supplementary
affidavit without disclosing as to how the
appellant
is
Pardanashin
lady.
Even
otherwise she is the sole proprietor of the
appellant transport company as admitted by
learned counsel for the appellant, therefore,
it is apparent that the plea has been taken
only because the grounds taken by the
appellant in the affidavit filed in support of
10 All. Ms. Supreme Transport Co., Lucknow Vs. Smt. Suman Devi & Anr.
15
the application for condonation of delay are
not sufficient. On a query being put as to
whether the plea of Pardanashin was taken
before the tribunal or not also, learned
counsel for the appellant has not given any
reply. However, the impugned judgment
and award does not indicate that any such
plea was taken before the tribunal,
therefore, it is nothing but an after thought
just to get the delay condoned in this
appeal.

8. In view of above, the grounds taken
by the appellant of such a long delay are
not sufficient to condone the delay. A
litigant, who is such negligent that he/she
would not inquire for the status of case for
such a long period in which the allegations
are against him/her and he/she has put in
appearance and filed written statement and
documents, can not be said to was
prevented from sufficient cause from
preferring appeal in time because if he/she
has not pursued the case diligently and has
been negligent in doing so can not be said
to have been prevented, therefore the
grounds taken are nothing but excuses for
such a long delay. Such a litigant is not
entitled for any discretion of Court.
Therefore no fruitful purpose will be served
even by issuing notices to the respondents
for calling objection on the application for
condonation of delay, when this Court is
satisfied that the grounds taken for
condonation of delay of such a long period
are not sufficient at all.

9. The Hon'ble Supreme Court, in the
case
of
Maniben
Devraj Shah
Vs.
Municipal Corpn. of Brihan Mumbai,
(2012) 5 SCC 157, has held that if 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. The relevant paragraphs
24 and 25 are extracted here-in-below:-

"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.

25. 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."

10. The Hon'ble Supreme Court, in the
case of K.B. Lal (Krishna Bahadur Lal)
Vs. Gyanendra Pratap and Other; 2024
(42) LCD 828, has held 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. The relevant paragraph 10
is extracted here-in-below:-

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
16 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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, nonpedantic 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.

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
10 All. Ms. Supreme Transport Co., Lucknow Vs. Smt. Suman Devi & Anr.
17
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 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."

11. This Court has to see the
sufficient 'explanation' for condonation of
delay and not the 'excuses' for condoning
the delay as held by the Hon'ble Supreme
Court in the case of Sheo Raj Singh &
Others Vs. Union of India and Another;
(2023)
10
SCC
531.
The
relevant
paragraphs 31 and 32 are extracted here-inbelow:-

"31. Sometimes, due to want of
sufficient cause being shown or an
acceptable explanation being proffered,
delay of the shortest range may not be
condoned whereas, in certain other cases,
delay of long periods can be condoned if
the
explanation
is
satisfactory
and
acceptable. Of course, the courts must
distinguish between an "explanation" and
an "excuse". An "explanation" is designed
to give someone all of the facts and lay out
the cause for something. It helps clarify the
circumstances of a particular event and
allows the person to point out that
something that has happened is not his
fault, if it is really not his fault. Care must,
however, be taken to distinguish an
"explanation" from an "excuse". Although
people tend to see "explanation" and
"excuse" as the same thing and struggle to
find out the difference between the two,
there is a distinction which, though fine, is
real.

32. An "excuse" is often offered
by a person to deny responsibility and
consequences when under attack. It is sort
of a defensive action. Calling something as
just an "excuse" would imply that the
explanation proffered is believed not to be
true. Thus said, there is no formula that
caters to all situations and, therefore, each
case for condonation of delay based on
existence or absence of sufficient cause has
to be decided on its own facts. At this stage,
we cannot but lament that it is only
excuses, and not explanations, that are
more often accepted for condonation of
long delays to safeguard public interest
from those hidden forces whose sole
agenda is to ensure that a meritorious
claim does not reach the higher courts for
adjudication."

12. Learned counsel for the appellant
relying on the judgment of the Hon'ble
Supreme Court, in the case of N.
Balakrishnan Vs. M. Krishnamurthy;
AIR 1998 Supreme Court 3222, submits
18 INDIAN LAW REPORTS ALLAHABAD SERIES
that the delay may be condoned and appeal
may be heard and decided on merit.

13. The Hon'ble Supreme Court, in the
aforesaid case relied by learned counsel for the
appellant, has held that Rules of Limitation are
not meant to destroy the right of the parties.
They are meant to see that parties do not resort
to dilatory tactics but seek their remedy
promptly. The idea is that every legal remedy
must be kept alive for a legislatively fixed
period of time. This case is not of any help to
the appellant for condoning delay of such a long
period. The relevant paragraph is extracted
here-in-below:-

"Rule of limitation are not meant to
destroy the right 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.
Law of limitation fixes a life-span for such
legal remedy for the redress of the legal injury
so suffered. Time is precious and the wasted
time would never revisit. During efflux of time
newer causes would sprout 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. Law
of limitation is thus founded on public policy.
It is enshrined in the maxim Interest
reipublicae up sit finis litium (it is for the
general welfare that a period be putt to
litigation). Rules of limitation are not meant to
destroy the right of the parties. They are meant
to see that parties do not resort to dilatory
tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept
alive for a legislatively fixed period of time."

14. In view of above, the delay can be
condoned if sufficient ground is shown for
condonation of delay. However as indicated
above, what to say of sufficient ground, the
appellant has failed to show even a single
ground for condonation of such a long delay of
3107 days and destroy the right of parties. He
has even failed to disclose as to who was the
person on whose shoulder he has put the
burden of such a long delay even for the
period of four years after his death, therefore,
the grounds shown by the appellant are
nothing but a concocted story to get the delay
of such a long period condoned in the matter
of accident claim, in which he had contested
the case throughout and after affording
sufficient opportunity of hearing the tribunal
passed the impugned judgment and award.

15. In view of above and considering the
over all facts and circumstances of the case,
this Court is of the view that the appellant has
failed to show that the appellant was
prevented from sufficient cause to file the
appeal and only excuses have been given,
therefore, the application for condonation of
delay is misconceived and liable to be
dismissed.

16. The application for condonation of
delay is dismissed.

17. Consequently, the appeal is
dismissed.
----------
(2024) 10 ILRA 18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 963 of 2024

Mrs. Jayshree Kailash Wani ...Appellant
Versus
Official Liquidator ...Respondent