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PETITIONER: N. BALAKRISHNAN.

       Vs.

RESPONDENT: M. KRISHNAMURTHY.

DATE OF JUDGMENT:       03/09/1998

BENCH: S.SAGHIR AHMAD, K.T. THOMAS.,

ACT:

HEADNOTE:

JUDGMENT: JUDGEMENT Thomas J. Leave granted. Explanation for the apparently inordinate  delay  in moving  an application was accepted by the trial court under Section 5 of the Limitation Act, 1963, but the High Court in revision reversed the finding and consequently dismissed the motion. That order of the High Court has given rise to these appeals. Facts  barely  needed  for  these  appeals  are  the following: A  suit  for  declaration  of  title  and  ancillary reliefs  filed  by  the  respondent  was decreed ex-parte on 28.10.1991.  Appellant, who was defendant in  the  suit,  on coming  to know of the decree moved an application to set it aside.  But the application was  dismissed  for  default  on 17.02.1993.  Appellant moved for having that order set aside only  on  August  19, 1995 for which a delay of 883 days was noted.  Appellant also filed another application to  condone the delay by offering an explanation which can be summarized thus: Appellant engaged an advocate (one  Sri  MS  Rajith) for  making  the motion to set the ex-parte decree aside but the advocate failed to inform him that the  application  was dismissed for  default  on  17.2.1993.   When he got summons from the execution  side  on  5.7.1995  hye  approached  his advocate  but he was told that perhaps execution proceedings would have been taken by the decree holder since  there  was no stay  against  such execution proceedings.  On the advice of the same advocate, he  signed  some  papers  including  a Vakalatnama for resisting the execution proceedings, besides making  a  payment of Rupees Two Thousand towards advocate’s fees and other incidental expenses.  But the  fact  is  that the  said  advocate  did  not  do anything in the court even thereafter - On 4.8.1995 the execution warrant was issued by the court and he became suspicious of  the  conduct  of  his advocate and hence rushed to the court from where he got the disquieting  information  that  his application to set aside the ex-parte decry stood dismissed for default as  early  as 17.2.1993  and that nothing was done in the court thereafter

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on his behalf.  He also learned that his advocate  has  left the  profession and joined as legal assistant of MS Maxworth Orcheads India  Limited.    Hence  he  filed   the   present application for having the order dated 7.2.1993 set aside. Appellant  did  not  stop  with filing the aforesaid application.  He also moved the District  Consumer  Disputes Riderless  Forum, Madras North ventilating his grievance and claiming a compensation of rupees on  lakh  as  against  his erstwhile advocate.    The  said  forum  passed  final order directing the said advocate to pay  a  compensation  of  Rs. Fifty thousand  to the appellant besides a cost of Rs.  Five Hundred. Though,  the  trial  court was pleased to accept the aforesaid explanation and condoned the delay a single  Judge of  the  High  Court  of  Madras  who  heard  the  revision, expressed the view that the delay of 883 days in filing  the application has  not  been  properly  explained.   Hence the revision was allowed and trial court order  was  set  aside. An  application for review was made, but that was dismissed. Hence these appeals. The reasoning of the learned  single  Judge  of  the High  Court  for  reaching  the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period.  According  to the learned single Judge:         "If the appellant was careful enough to verify about         the  stage  of  the proceedings at any point of time         and had he been misled by the counsel then  oily  it         could  have been said that due to the conduct of the         counsel the party should not be penalised." Learned single judge then  observed  that  when  the party  is  in  utter  negligence,  he cannot be permitted to blame the counsel. Learned single judge has further remarked that:         "A perusal of the  affidavit  does  not  reveal  any         diligence  on  the  part  of  the  respondent in the         conduct of the proceedings.  When already  the  suit         has  been  decreed ex-parte, the respondent ought to         have been more careful and diligent  in  prosecuting         the matter  further.   the conduct of the respondent         clearly reveals that at any point of  time,  he  has         not relished his responsibility as a litigant." Appellant’s conduct does not on the whole warrant to castigate him as an irresponsible litigant.  What he did  in defending  the  suit  was  not  very  much  far  from what a litigant would broadly do.  Of course, it may be  said  that he  should  have been more vigilant by visiting his advocate at  short  intervals  to  check  up  the  progress  of   the litigation.   But  during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to  depict him  as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 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 want of acceptable explanation  whereas  in  certain  other cases delay of 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

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disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion  was  on  whole  untenable grounds or  arbitrary  or  perverse.   But it is a different matter when the first cut refuses to condone the dela.    In such  cases,  the superior cut would be free to consider the cause shown for the delay afresh and  it  is  open  to  such superior  court  to come to its own finding even untrammeled by the conclusion of the lower court. The reason for such a different stance is thus:  The primary  function  of  a  court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit  fixed  for  approaching  the   court   in   different situations  in  not because on the expiry of such time a bad cause would transform into a good cause. 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. 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 vide Shakuntala  Devi  Jain  Vs.  Kuntal Kumari  [AIR  1969  SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 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.  While condoning delay the Could should not forget the opposite party altogether.  It must be  borne  in mind  that  he  is  a  looser and he too would have incurred quiet a large litigation expenses.  It would be  a  salutary guideline  that  when courts condone the delay due to laches on the part of the applicant the court shall compensate  the opposite party for his loss. In this case explanation for the delay set up by the appellant  was  found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong  in upsetting  the  finding,  more  so  when  the High Court was exercising reversional  jurisdiction.     Nonetheless,   the

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respondent  must  be  compensated  particularly  because the appellant has secured a sum of Rs.  Fifty thousand from  the delinquent  advocate through the Consumer Disputes Riderless Forum.  We, therefore, allow these appeals and set aside the impugned order by restoring the order passed  by  the  trial court  but  on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in  this court within one month from this date. The appeals are disposed of accordingly.