Order on Board

04.11.2022

1. The present MCC has been filed seeking for restoration of the Second Appeal No.194 of 2001. The said Second Appeal got dismissed for want of prosecution vide order dated 03.10.2013. The appeal was the plaintiff’s second appeal. The MCC now has been filed on 29.09.2022 i.e. after about 9 years from the date of dismissal of the second appeal in default.

2. There is a delay of more than 3252 days in the filing of the MCC. The only reason seeking for condonation of delay is that which is mentioned in paragraphs 2 & 3 of the application under Section 5 of the Limitation Act which for ready reference is reproduced hereinunder:

“2. That, because of the communication gap the counsel wasn’t able to provide the details and thereafter in the month of January of 2020 when the petitioner contacted his trial court counsel to get the knowledge about his case he was been told that on 03.10.2013, the Second Appeal which was pending before the Hon’ble High Court has been dismissed due to want of prosecution

3. That, due to the Covid-19 Pandemic the petitioner wasn’t able to approach the Hon’ble High Court. And thereafter the petitioner allotted his case to new counsel for presenting the same for restoration of SA No.194 of 2001.”

3. It has become a usual practice these days for taking advantage of application under Section 5 of the Limitation Act for referring to the Covid- 19 Pandemic for condonation of the delay caused. In the instant case the appeal of the applicant was of the year, 2001. When there was repeated absence on behalf of the appellants before the High Court, the Second Appeal got dismissed in default in October, 2013. At that point of time there was no trace of the Covid-19 Pandemic anywhere in the Universe. Therefore, the said ground cannot be a strong ground for giving a sympathytic consideration or for a liberal view in allowing an application under Section 5 of the Limitation Act.

4. Now as regards the other ground of the non communication of the order by the counsel to the appellant again is one which is hard to believe for the reason that the appellant themselves in their application say that they had contacted the Lawyer of the trial court only in January, 2020 when it was informed to them that the appeal has got dismissed for want prosecution.

5. Therefore, now what is to be considered is whether the grounds raised by the applicant in their application under Section 5 of the Limitation Act provides for a reasonable ground and a justifiable explanation seeking for the condonation of delay. What is also necessary to be appreciated is whether the applicants were at any point of time for any bonafide reasons prevented from obtaining the information from the concerned counsel on an earlier occasion. What is also surprising is that even when in January, 2020 when they came to know about the dismissal of the appeal in default, the present MCC has still been filed with a delay of two years and 9 months for which also there is no justifiable grounds available in the application.

6. In this context, in case of Maniben Devraj Shah Versus Muncipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 the Supreme Court in paragraphs 23 and 24 held as under:

“23. 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.”

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. i