Mohd. Toufique Vs. Dr. H.L. Solanki and anr. - Court Judgment

Excerpt:

- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 1 failed to disclose the name of particular advocate, who informed him, that his case has been dismissed in default. baquir el edross, air 1981 sc 1921, the apex court held that if no cause for condonation of delay is shown, even if there is strong case on merit, it would not be a ground for condoning the delay......going through the impugned order, it is gathered that though it was found by the court below that, despite having knowledge of the dismissal of the case, respondent no. 1 did not move any application for restoration for six months and he was in dilemma. the only reason assigned by the trial court for condoning the delay is that, the liberal approach should be adopted. there is no quarrel to the proposition that a liberal approach should be adopted, but, in the present case, no ground much less than a sufficient ground or cause has been made out in order to condone the delay. no doubt, while dealing the application under section 5 of the limitation act, the discretion vests in the court but it is equally true that the discretion should be exercised judicially and not in arbitrary manner, however, if the circumstances do not warrant to condone the delay, it should not be condoned.9. as stated hereinabove, according to his own showing, the respondent no. 1, kept silent for six months, despite of the knowledge that the case has been dismissed in default and he was in dilemma, whether he should file an application or not, and ultimately after six months, if he chooses to file the.....

Judgment:

ORDER

A.K. Shrivastava, J.

1. By this revision petition filed under Section 115 of the Code of Civil Procedure, 1908, the petitioner has assailed the impugned order passed by 4th Motor Accidents Claims Tribunal, Bhopal by which it had allowed the application of restoration filed by respondent No. 1.

2. No exhaustive statement of facts arc necessary for the disposal of this petition. Suffice it to say that respondent No. 1 submitted a claim petition under Section 166 of the Motor Vehicles Act which was dismissed in default on 3-9-2001. An application for restoration was filed on 8-4-2002. In the application, it has been contended that, from an Advocate, respondent No. 1 came to know on 4-4-2002 that his claim petition has been dismissed in default on 3-9-2001. According to respondent No. 1, his Counsel did not inform him regarding the dismissal of his case and when he came to know about it, he contacted another Advocate and filed restoration application on 8-4-2002.

3. The restoration application was resisted by the petitioner and it has been categorically stated in the reply that respondent No. 1 was not serious to his case and he was negligent. It has also been contended in the reply that the averments made in the application of restoration are vague. Respondent No. 1 failed to disclose the name of particular Advocate, who informed him, that his case has been dismissed in default.

4. The respondent No. 1 submitted an affidavit under Order 18 Rule 4, CPC before the Tribunal on which there was a cross-examination by the petitioner. In his cross-examination, it has been admitted by respondent No. 1 that his Counsel Shri Tiwari informed him through a letter that his case has been dismissed in default. Thereafter, he has specifically stated that, after receiving the said letter, he came to know that his case has been dismissed in default, he waited for six months and was just thinking whether he should file the restoration application or not, and ultimately after six months, he arrived at the conclusion that he should file restoration application. Thus, according to his own showing, respondent No. 1 did not file the restoration application within time though he came to know that his case has been dismissed in default and he waited for six months for filing the restoration application. According to him, he was in dilemma and ultimately he choose to file the restoration application. According to the Court below since, the approach in dealing application under Section 5 of the Limitation Act should be liberal, therefore, on this ground the restoration application was allowed. Hence, this revision petition.

5. It has been contended by Shri Manikant Sharma, learned Counsel appearing for the petitioner that according to his own admission, the restoration application filed by respondent No. 1 was not required to be allowed since it was barred by time and the respondent No. 1 was negligent, therefore, his application for restoration should have been rejected.

6. On the other hand, it has been contended by Shri A.S. Usmani, learned Counsel appearing for respondent No. 1 that the Court below, by adopting liberal approach has condoned the delay in filing restoration application and restored the original case. According to him, there is no infirmity in the order and the revision petition deserves to be dismissed. The learned Counsel for respondent has placed reliance on the Division Bench decision Ramesh Chand Pathak v. Manikchand Jain and Ors., 1992 (1) MPJR 271.

7. After having heard learned Counsel for the parties, I am of the view that this revision petition deserves to be allowed.

8. On going through the impugned order, it is gathered that though it was found by the Court below that, despite having knowledge of the dismissal of the case, respondent No. 1 did not move any application for restoration for six months and he was in dilemma. The only reason assigned by the Trial Court for condoning the delay is that, the liberal approach should be adopted. There is no quarrel to the proposition that a liberal approach should be adopted, but, in the present case, no ground much less than a sufficient ground or cause has been made out in order to condone the delay. No doubt, while dealing the application under Section 5 of the Limitation Act, the discretion vests in the Court but it is equally true that the discretion should be exercised judicially and not in arbitrary manner, however, if the circumstances do not warrant to condone the delay, it should not be condoned.

9. As stated hereinabove, according to his own showing, the respondent No. 1, kept silent for six months, despite of the knowledge that the case has been dismissed in default and he was in dilemma, whether he should file an application or not, and ultimately after six months, if he chooses to file the application for restoration, according to me, this would not be a sufficient ground to condone the delay. If this type of approach is to be adopted, then the Courts are left on the whims of the litigants that whenever they would file an application, the Court by adopting liberal approach would allow it. This is not the intention of law. Expression 'liberal approach' should not be extended or should not be stretched in such a manner that it may cover the gross negligence of a party. In the case of State of Gujarat v. Sayed Mohd. Baquir El Edross, AIR 1981 SC 1921, the Apex Court held that if no cause for condonation of delay is shown, even if there is strong case on merit, it would not be a ground for condoning the delay. In the present case, respondent No. 1 is a sensible person, he is a doctor by profession and, therefore, if he chooses not to file the application of restoration for six months despite having come to know that his case has been dismissed in default, in my opinion, the learned Trial Court acted illegally and with material irregularity in exercise of its jurisdiction in allowing his application, simply on the ground that a liberal approach should be adopted while dealing with the application filed under Section 5 of the Limitation Act.

10. In the result, the revision succeeds and is hereby allowed, the impugned order is hereby set aside. The parties are directed to bear their own costs.