B.S. Chauhan, C.J.
1. Misc. Case No. 55 of 2008 has been filed for taking certified copy of the Decree dated 14.02.1997 on record.
2. The facts and the circumstances giving rise to this application are that the Appeal from High Court Order (AHO) has been preferred against the Judgment of the Learned Single Judge of this Court dated 4.12.1996 in F.A. No. 191 of 1980. The Appeal was admitted vide Order Dated 07.05.1998. Certified copy of the decree had not been filed at the time of filing of the appeal or even at the time of its admission. Hence this Misc. Case is filed on 01.12.2008 for taking certified copy of the decree on record as 'inadvertently' the decree could not be filed, though the decree had been drawn by the Court in the First Appeal on 14.02.1997.
3. A Learned Counsel for the Respondents Mr. J. Pal has raised serious objection regarding filing of Misc. Case at such a belated stage contending that an appeal is not maintainable under Order-41 Rule-1 of the Code of Civil Procedure (hereinafter called 'CPC'). The appeal could not be competent without certified copy of the decree. Condition precedent for entertaining an appeal is that certified copy of the decree should be accompanied with the memorandum of appeal. In exceptional circumstances where decree had not be drawn by the Court, an appeal may be entertained giving time to the Appellant to file certified copy of the decree immediately after it is prepared. In the instant case, as the decree had been drawn by the Court on 14.02.1997, application cannot be entertained after expiry of about twelve years. Therefore, it is liable to be rejected.
4. On the other hand Mr. A. Mukherjee, Learned Senior Counsel appearing for the Appellants has submitted that the cause of substantial justice should not be defeated on such technicality. Certified copy of the decree could not be filed 'inadvertently'. The delay has to be condoned for filing the same and the appeal is to be heard on merit.
5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.
6. There is no dispute to the settled legal proposition that prior to the amendment of the CPC with effect from 01.07.2002, Order-41, Rule-1, CPC mandatorily required to file copy of the decree without which the appeal could not be competent.
7. The Hon'ble Supreme Court in Jagat Dhish Bhargava v. Jawaharlal Bhargava and Ors. : [1961]2SCR918 held that requirement of the certified copy of the decree with the memorandum of appeal is mandatory and in absence of the decree, filing of the appeal would be incomplete, defective and incompetent. However, in case the office of the High Court examines the appeal carefully and discovers the defect, the appeal may be returned to the Appellant for presentation with the certified copy of the decree after it is obtained. The Court considered the eventuality where the appeal is admitted without copy of the decree and observed as under:
If the appeal has passed though the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the Appellant should produce the certified copy of the decree as soon as it is supplied to him. In such a case, it would be open to the High Court, and it would be it's duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the Appellant after the decree was drawn up, the office of the Appellate Court should return the appeal to the Appellant as defective, and when the decree is filed by him, the question of limitation may be examined on the merits.
8. In Shakunthala Devi Jain v. Kuntal Kumari and Ors. : [1969]1SCR1006 , the Apex Court examined the similar issue and held that point of limitation must be examined on the refilling of the appeal along with certified copy of the decree and at that stage, it is relevant for the Court to consider the application under Section 5 of the Limitation Act, if there is any delay in refilling after return of the appeal to the Appellant to make it competent. The Court has to consider as to whether there was 'sufficient cause' for condoning the delay, though the terms 'sufficient cause' may receive a liberal construction so as to advance substantial justice when 'no negligence nor inaction nor want of bonafides is imputable to the Appellant'.
9. In State of Maharashtra and Ors. v. Nazmunnisa and Ors. : (1998)9SCC191 , the Hon'ble Supreme Court considered the Issue of entertaining the appeal without copy of the decree where the Bombay High Court dismissed the application for condonation of delay as the decree could not be filed along with Judgment and it was presented after 79 days. The Apex Court considered that under the amended change of law, the Judgment and decree bear the same date and when the Judgment is filed in time along with the appeal, the non-filing of the decree being a technical flaw ought to have been regularised by formal condonation of delay of 79 days.
10. In Mst. Mali v. Lassi Thakur and Ors. AIR 1968 J&K; 19, it was held that an appeal without a copy of the decree against which the appeal has been preferred is not competent. However, where at the time of presentation of the appeal, the appeal is admitted by the Court on being presented by the Counsel, and it did not have the copy of the decree, the Court by act of indulgence to the Appellants gave time to produce copy of the decree-sheet and the decree-sheet is produced in pursuance of the order of the Court, appeal will be deemed to have been presented on the initial date of presentation and in such a case, the question of condonation of delay would not arise.
11. In Labhmal v. Lalchand a similar issue was considered and it was held that an appeal without copy of the decree is incomplete, defective and incompetent and if it is so presented, the Appellant is bound to file copy of the decree and satisfies the Court that there has been 'sufficient course' for non filing of the certified copy of the decree which in the fact and circumstance of the case warrant condonation of delay in filing the appeal.
12. In view of the above, on the issue, the law can be summarized that the appeal is not competent rather remains defective and incompetent, unless copy of the decree is filed and in case the appeal has been entertained inadvertently by the Court, it has a duty to return the same to the Appellant to make it competent. In that situation, if there is any delay in filing the appeal, the issue of condonation of delay becomes relevant and such an application under Section 5 of the Limitation Act is to be considered on merit.
13. In the instant case, admittedly, the certified copy of the decree is filed after a lapse of more than eleven years and nine and half months. No explanation has been furnished worth the name for such inordinate delay except that 'inadvertently' it could not be filed. Therefore, the question arises as to whether in the facts and circumstances of the case where the application for condonation of delay has not been filed, the Court should condone such inordinate delay.
14. It is settled legal proposition that generally the Court cannot grant relief to the litigant which he has not asked for meaning thereby that in absence of an application for condonation of delay it is not within the competence of a Court to condone the delay suo motu (Vide Trojan & Co. v. RM. N. N. Nagappa Chettiar : [1953]4SCR789 ; Life Insurance Corporation of India and Ors. v. Jyotish Chandra Biswas : AIR2000SC3666 ; and in National Board of Examinations v. G. Anand Ramamurthy : AIR2006SC2484 .)
15. Mr. Pal has submitted that in absence of application for condonation of delay, it is not within the competence of Court to condone the delay suo motu particularly, when even no oral prayer is made. Application submitted by the Petitioner is that certified copy of the decree prepared about twelve years ago, be taken on record and nothing else.
16. On the contrary, it is canvassed on behalf of the Appellants that in order to do substantial justice application for taking decree of the record be allowed. It is not at all warranted to file the application for condonation of delay formally.
17. It goes without saying that the Court has to exercise its discretion in condoning the delay taking into account the facts and circumstances of each case. When the time for appealing is once passed, a very valuable right stands crystallized in favour of the successful litigant and the Court must therefore be fully satisfied of the ground on which the Appellant seeks to obtain an extension of time for attacking the decree and thus perhaps depriving the successful litigant of the advantages he has obtained.
The Court has to carefully weigh the claims of both the parties. (Vide Ramlal v. Rewa Coalfields Ltd. : [1962]2SCR762 ; and Sohan v. Abdul Hameed Khan : AIR1976All159 ).
18. The applicant has to satisfy the Court as regards the 'sufficient cause' and for that purpose, it is always desirable that he would file a formal application for condonation of delay. However, the Court may take lenient view and oral prayer may also be accepted. (Vide Gadachandi v. Udi : AIR1981Ori126 ; and Hari Shankar Singhania and Ors. v. Gaur Hari Singhania and Ors. : AIR2006SC2488 ). It may depend upon the rules prepared by the High Court as to whether such a relief can be granted orally. Where the application is filed beyond time, it must show on the face of it the reason for the delay and the extent of delay and there must be express prayer for condonation of the delay under Section 5 of the Limitation Act. (Vide Delhi Development Authority v. Raghunath Sahai Gupta : AIR1973Delhi262 ). In a proper case, reasons for delay need not necessarily be stated where the explanation for condonation of delay is self evident from the facts proved. (Vide Dhoba Naik and Ors. v. Sabi Dei : AIR1973Ori182 ).
19. Be that as it may, whether the application for condonation of delay is required or not, the party has to establish that it had not been negligent or guilty of inaction. The party had to show that it was diligent in pursuing the remedy and the delay if any was beyond its control and therefore, there was 'sufficient cause' for not approaching the Court in time.
20. In Brij Indar Singh v. Lala Kanshi Ram and Ors. AIR 1917 PC 16, it has been observed that true guide for a Court is to exercise the distinction as to whether the applicant acted with reasonable diligence in prosecuting its case.
21. In Arjun Singh v. Mohindra Kumar : [1964]5SCR946 , the Court explained the difference between the 'good cause' and the 'sufficient cause' and observed that every sufficient cause must be a good cause and must afford an explanation for non appearance, nor conversely of a 'sufficient cause' which is not a good one.
22. In Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee and Ors. : [1964]3SCR495 , the Hon'ble Apex Court held that the applicant must satisfy the Court that it was prevented by any sufficient cause from prosecuting its case, and unless the satisfactory explanation is furnished, the Court should not allow the application.
23. In Lala Matadin v. A. Narayanan : [1970]2SCR90 , the Hon'ble Apex Court held that in order to determine as to whether there was a sufficient cause for the non-appearance, which-required to be examined either the mistake was bona fide or was merely a device to cover an ulterior purpose.
24. In State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. : AIR2000SC2306 , the Court held that while considering as to whether there was a sufficient cause, the Court must bear In mind the object of doing substantial justice to all the parties concerned. The technicalities of law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the impugned Judgment.
25. In Madanlal v. Shyamlal : AIR2002SC100 ; and Ramnath Sao alias Ham Nath Sao and Ors. v. Gobardhan Sao and Ors. : [2002]2SCR77 , the Hon'ble Apex Court has observed that the expression 'sufficient cause' should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not 'sufficient cause' has been furnished, can be decided on the facts of a particular case, no straitjacket formula is possible.
26. But the question does arise as to whether in the facts and circumstances of the case, delay required to be condoned merely to do substantial justice without realizing that justice has to be given to both the parties.
27. Justice is the virtue, by which the Society/Court/Tribunal gives to a man what is his due, opposed to injury or wrong. (Wharton's Law Lexicon, 1976 Reprint Edn., p. 552). Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law. In Delhi Administration v. Gurdip Singh Uban and Ors. : (2000)7SCC296 , the Hon'ble Apex Court observed as under:
The words 'justice' and 'injustice', in our view, are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, any when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded. (Selected Writings of Cardozo, pp 223-24; Fallon Publications, 1947).
Therefore, justice has to be done to both the parties and the case cannot be considered only taking into consideration the interest of one party.
28. The issue of delay becomes relevant with the rights in favour of the other party for inaction on the part of the applicant. Therefore, there must be satisfactory explanation by the applicant as how he could not approach the Court within time, (vide Northern Indian Glass Industries v. Jaswant. Singh and Ors. : AIR2003SC234 ; and Printers (Mysore) Ltd. v. M.A. Rasheed and Ors. : (2004)4SCC460 ; and State of Rajasthan v. Chanda (2007) 11 SCC 402.)
29. The law of limitation is enshrined in the maxim 'interest reipublicae up sit finis litium' (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
30. Time-barred cases should not be entertained by Courts as the rights which have accrued to others by reason of delay in approaching the Court, cannot be allowed to be disturbed unless there is a reasonable explanation for the delay. The vested rights of the parties should not be disrupted at the instance of a person who is a guilty of culpable negligence. (Vide R.S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC ; and K.R. Mudgal v. R.P. Singh : (1987)ILLJ214SC ). The Privy Council in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim , relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that 'a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law.'
31. In N. Balakrishnan v. M. Krishnamurthy : 2008(228)ELT162(SC) , the Apex Court explained the scope of limitation and condonation of delay, observing as under:
The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 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 for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy.
32. In Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and Ors. : 2001(132)ELT15(SC) ; the Apex Court made a distinction in delay and inordinate delay and observed that delay may be condoned but inordinate delay may not be condoned unless there are compelling circumstances to do so.
33. In P.K. Ramachandran v. State of Kerala and Anr. : 1997ECR785(SC) , the Hon'ble Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under:
Law of limitation harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation equitable grounds.
34. In State of Haryana v. Chandramani : 2002(143)ELT249(SC) , the Supreme Court considered large number of its earlier Judgments including Binod Bihari Singh v. Union of India : AIR1993SC1245 ; Shakambari & Co. v. Union of India : AIR1992SC2090 ; Warlu v. Gangotribai : AIR1994SC466 ; Ramlal Motilal & Chhotelal v. Rewa Coalfields Ltd. : [1962]2SCR762 , Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi : [1979]118ITR507(SC) , Lala Mata Din v. A. Narayanan : [1970]2SCR90 , and held that expression 'each day's delay must be explained', does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner.
35. It is well settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. The words 'sufficient cause' be construed liberally. (Vide Dal Singh v. King Emperor of India AIR 1917 PC 25; Collector, Land Acquisition Anantnag v. Mst. Katiji and Ors. : (1987)ILLJ500SC ; Mohammad Swalleh and Ors. v. Illrd Additional District Judge, Meerut and Anr. : [1988]1SCR840 ; S.Nagraj v. State of Karnataka 1993 Suppl. (4) SCC 595 and Sree Jain Swetambar Terapanthi Vid(s) v. Phundan Singh : [1999]1SCR498 ).
In State (NCT of Delhi) v. Ahmed Jaan AIR 2008 SCW 5692; the Apex Court held that giving liberal construction to the words 'sufficient cause' the Court has to examine as to whether explanation furnished by the applicant is plausible.
36. In view of the above, law on this issue can be summarized that Court has ample power to entertain a prayer for condonation of delay even orally and while considering such a prayer Court has to advance the cause of substantial justice. However, as delay crystallizes certain rights in favour of the other party and the same do not require to be taken away lightly. The Court has to consider as to whether the applicant has been guilty of negligence/ inaction. If the applicant itself has not been diligent to prosecute its case, the prayer either by filing a formal application or made orally cannot be accepted. The applicant has to show the sufficient cause for which it could not approach the Court in time. The Court does not have the power to extend the period of limitation fixed by the legislature, however, it can merely condone the delay in exceptional circumstances where the Court is satisfied that the party had 'sufficient cause' for not approaching the Court in time.
37. In the instant case application for condonation of delay has not been filed. No explanation for delay in filing the application for taking the decree on the record has been furnished except saying that the certified copy could not be filed 'inadvertently'. Consideration of the application for condonation of delay requires to be examined as to whether there was 'sufficient cause' for the party not to approach the Court within time. Merely a bald statement has been made by the applicants that 'certified copy' could not be filed 'inadvertently' which clearly makes out a case that the Appellants had not been dealing with the appeal with diligence. They are guilty of negligence and inaction. There is nothing on record which requires consideration as to whether the delay was unintentional or the explanation for delay, furnished by the applicant could be plausible. As no reasoning, whatsoever has been given, we do not need to require anything, whatsoever. Thus in such a fact situation there is no obligation on the part of the Court to entertain the application after expiry of about twelve years.
38. The misc. case lacks merit and is accordingly dismissed. As a consequence thereof, the appeal fails.
B.N. Mahapatra, J.
I agree.