The Lucknow Bench of the Allahabad High Court while rejecting the delayed application against acquittal and said that 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.
A Single Bench of Justice Shamim Ahmed passed this order while hearing a petition filed by Smt Sarla Devi.
This leave to appeal has been filed with a delay of 2 Years 04 Months and 8 Days, as per the report of the stamp reporter, challenging the order dated 10.06.2013 passed by the Additional Chief Judicial Magistrate, Kheri in Criminal Case Police Station Kotwali Sadar, District Kheri against the acquittal of the accused person/opposite party nos 2 & 3.
Counsel for the applicant in the application for condonation of delay supported with the affidavit has taken the ground that the impugned order was passed on 10.06.2023 by the court concerned and the appeal was not filed in time as the clerk of the advocate was ill.
Hari Shanker Bajpai, A.G.A-I for the State Opposite Party No1 as well as Shailendra Singh Rajawat, counsel for the opposite party nos 2 & 3 jointly submit that this leave to appeal is time barred by 2 Years 04 Months and 8 Days and the reasons shown in the affidavit supported with application for condonation of delay do not appear to be justified.
After considering the arguments advanced by counsel for the parties as well as after perusal of record, the Court found that the explanation given in the affidavit accompanying delay condonation application filed under Section 5 of Limitation Act, 1963 is neither acceptable nor trustworthy.
The Court observed that,
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 the 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.
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 be revisited. 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 limitations is founded on public policy. It is enshrined in the maxim Interest reipublicae ut 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, the 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 suitor 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.
The Court said that 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 an apparent casual approach on the part of the suiter, the approach of Court is also bound to change.
“I need not burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of the Court on construing “sufficient cause” under Section 5 of Act, 1963 and it would be sufficient to refer to a very few of them besides those already referred.
In my 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, I find that here is a case which shows a complete careless and reckless long delay on the part of the appellant which has remained virtually unexplained at all. Therefore, I do not find any reason to exercise my judicial discretion exercising judiciously so as to justify condonation of delay in the case”, the Court further observed while dismissing the appeal.
Accordingly, the application for condonation of delay is rejected by the High Court.