# Vishnu Dev v. Hans Nath

- **Citation:** (2016) 4 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-28
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-dev-v-hans-nath-43632
- **Pages:** 4

## Headnote

Sri Sushi Kumar Srivastava

Delay - Sole appellant died on 10.10.1994; substitution application filed only on 03.02.1998 without any
application for condonation of delay or for setting aside abatement - No explanation in affidavit why
substitution was not sought in time, why new counsel was not engaged after earlier counsel's elevation in
2000, or why restoration was not moved within limitation after dismissal of the appeal in default on
19.09.2011 - Held, second appeal had already abated automatically nearly 16 years before dismissal; in
absence of any cogent or satisfactory reason, there is no "sufficient cause" under Section 5 Limitation Act to
condone delay either in substitution or in restoration - Delay condonation application and restoration
application rejected. ((Paras 2-5, 11)
Limitation - Abatement - Restoration - Principles reiterated that Limitation Act is a statute of repose based
on public policy to secure finality, prevent stale claims, and require parties to act with diligence - Civil court
cannot invoke inherent powers to condone delay beyond Section 5; hardship alone is not a ground, and delay
4 All. Vishnu Dev Vs Hans Nath
351
 can be condoned only where sufficient cause is clearly established - Where applicants failed to justify long
inaction in moving substitution, setting aside abatement, or restoration, relief was rightly refused. (Paras 610)

Case Law discussed:

## Text

350 INDIAN LAW REPORTS ALLAHABAD SERIES
31. Consequently, in the facts of the case, once the law on the subject is clear that it is the
MCI that will have the last word in the matter and before us a categorical stand has been taken by
the MCI that there is no such enabling provisions that enables the State Government to reserve 30%
seats for in-service candidates for pursuing post-graduate degree courses, then in our considered
opinion once the Government Order in question is going beyond the purview and scope of the MCI
Regulations, though the Government Order in question has not at all been challenged before us and
a part of the same has been challenged before us, on the premises that Postgraduate Medical
Education Regulations 2000 do not permit the State Government to reserve any seat for pursuing
postgraduate degree courses for in-service candidates, accordingly, as full opportunity has been
provided for to the State as well as to the petitioners, we proceed to quash the entire Government
Order 28.2.2014 with a direction that admissions in postgraduate degree courses be made strictly
on merit amongst the candidates, who have obtained requisite minimum marks in the examination
in question, so prescribed by the MCI.

32. With these observations/directions, writ petition is disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 1599 Of 1991

Vishnu Dev ...Appellant
Versus
Hans Nath ...Respondent

Counsel for the Appellant:
Sri S.N. Srivastava

Counsel for the Respondent:
Sri Sushi Kumar Srivastava

Delay - Sole appellant died on 10.10.1994; substitution application filed only on 03.02.1998 without any
application for condonation of delay or for setting aside abatement - No explanation in affidavit why
substitution was not sought in time, why new counsel was not engaged after earlier counsel's elevation in
2000, or why restoration was not moved within limitation after dismissal of the appeal in default on
19.09.2011 - Held, second appeal had already abated automatically nearly 16 years before dismissal; in
absence of any cogent or satisfactory reason, there is no "sufficient cause" under Section 5 Limitation Act to
condone delay either in substitution or in restoration - Delay condonation application and restoration
application rejected. ((Paras 2-5, 11)
Limitation - Abatement - Restoration - Principles reiterated that Limitation Act is a statute of repose based
on public policy to secure finality, prevent stale claims, and require parties to act with diligence - Civil court
cannot invoke inherent powers to condone delay beyond Section 5; hardship alone is not a ground, and delay
4 All. Vishnu Dev Vs Hans Nath
351
 can be condoned only where sufficient cause is clearly established - Where applicants failed to justify long
inaction in moving substitution, setting aside abatement, or restoration, relief was rightly refused. (Paras 610)

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. Heard learned counsel for the parties and perused the records.

2. It is admitted fact that sole appellant of Second Appeal no. 1599/1991 had died in
10.10.1994 and its substitution application was filed on 03.02.1998. The application condonation of
delay in moving substitution application and for setting aside the abatement of appeal was not
moved.

3. On date of listing none was present to press the appeal so the Second Appeal no. 1599/
1991 was dismissed in default of appellant side on 19.09.2011. Its restoration application no.
325637/ 2014 along with delay condonation application no. 325634/ 2014 was moved on
26.09.2011 in this court, which is supported by affidavit of son of deceased appellant.

4. It is written in affidavit of applicant that earlier counsel had elevated to High Court in
year 2000, but no reason was given as to why new counsel was not engaged. It is not mentioned in
affidavit that applicants had no knowledge of elevation of earlier counsel. In fact no reason was
given as to why substitution application was not moved in time after death of sole appellant on
10.10.1994. Again it is also not mentioned in affidavit as to why restoration application was not
moved within period of limitation.

5. Therefore, there appears no sufficient ground for accepting the reason for condonation of
delay in moving substitution application or for setting aside abatement of appeal or for condonation
of delay in moving restoration application. The second appeal had already abated automatically
about 16 years before its dismissal 19.09.2011.

6. 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
352 INDIAN LAW REPORTS ALLAHABAD SERIES
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)."

7. In Damodaran Pillai & others v. South Indian Bank Ltd., AIR 2005 S.C. 3460,
Hon'ble Apex Court had held as under:-

"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."

8. 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
4 All. Amit Vs State Of U.P. & Anr.
353
 period of limitation provided by the statute there must be cogent and satisfactory reasons.
Such reasons are lacking in present matter.

9. 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."

10. 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 it 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
applicant/appellant 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 applicantappellant. 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 application within period of limitation or moving restoration application; therefore
under the provisions of Section 5 of Limitation Act his application should not be allowed.

11. In present case there is no sufficient ground for condoning the deliberate very long
delay in moving restoration application. In absence of any reasonable or sufficient ground, the
Delay Condonation Application No.- 325634/ 2014 and Restoration Application No.- 325637/ 2014
are rejected.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2016

BEFORE

THE HON'BLE AMAR SINGH CHAUHAN, J.

Criminal Revision No.- 1852 Of 2015

Amit ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties