DELHI AUTO AND GENERAL FINANCE PVT LTD Vs. DHARAM PAL
LAWS(J&K)-1986-8-12
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 01,1986

DELHI AUTO AND GENERAL FINANCE PVT LTD Appellant
VERSUS
DHARAM PAL Respondents

JUDGEMENT

- (1.) THE revision under Section 115 of the Code of Civil Procedure is directed against the order of City Judge, Jammu passed on September 29, 1981 dismissing the application of the petitioner under Section 5 of the Limitation Act. In order to dispose of the present revision, it is not necessary to burden the order by detailing the entire facts. Precisely the case of the petitioner is that an exparte decree was passed against the petitioner in a Civil Suit filed by the respondent, against which an application for setting aside the said decree was filed under Order 9 Rule 13 of the Code of Civil Procedure beyond the period of limitation prescribed for setting aside the exparte decree. The trial Court dismissed the application holding the same as barred by limitation, against which appeal was filed before the learned District Judge, which was also dismissed giving rise to a revision to the High Court, which was registered as Civil Revision No. 18 of 1974, disposed of an October 17, 1974 directing the remand of the case holding that there can be no condonation of delay in the absence of an application under Section 5 of the Limitation Act. An application was filed y the petitioner after the said remand order on 6 -9 -1975, i.e., with the delay of ten months and 19 days from the date, when this court remanded the case to the trial court and permitted the petitioner to file an application under Section 5 of the Limitation Act on the basis of which the trial court after getting the objections from the other side proceeded to record the evidence and disposed of the application by the order dated September 29, 1981 impugned in the present revision.
(2.) LEARNED counsel for the petitioner at the time of arguments submitted that no period of limitation is provided for filing an application under Section 5 of the Limitation Act nor the High Court by the remand order fixed any date for appearance of the parties before the trial court so as to appear and file the application on the date fixed. It is also not provided by the High Court within how much time the application should have been filed nor the trial court notice the parties for taking up the case to entertain the application. Secondly it is also submitted that the exparte decree was passed on the bonafide declaration of the counsel for the petitioner that he has no instructions and hence for that the party should not suffer and hence the application for condonation of delay should have been allowed considering the same as a sufficient cause within the meaning of Section 5 of the Limitation Act. The revision is contested by the respondent.
(3.) ON hearing the rival arguments, I am of the opinion that both the contentions put forward by the learned counsel for the petitioner have no legs to stand, firstly because an application under section 5 of the Limitation Act requires a sufficient cause for indulgence of the Court to grant relief to a bonafide litigant and in case the party chooses to put its reliance from the date of knowledge, each day of delay should be explained to invoke the provision for condonation. It will be a very strange proposition if a party is so much liberty that since no period of limitation is prescribed for filing an application under Section 5 of the Limitation Act, he should be left without explaining each day of delay immediately after it gets the first chance to make an application, it will make the provision nugatory. By the order of the High Court passed on 17 -10 -1974, which was admittedly passed within the knowledge of the counsel for the respective parties. It was the duty of the petitioner to immediately file the application under section 5 of the Limitation Act without wasting the time to save itself from giving explanation of each day of delay. The evidence adduced by the petitioner in support of the application is also silent on the explanation of 10 months and 19 days from the date of the order of the High Court till the application was filed on 6 -9 -1975 and hence I find that the trial court has not committed any mistake of law or jurisdiction in holding that no sufficient cause is shown for invoking the provision of section 5 of the Limitation Act, secondly about no instructions to the counsel for the petitioner, the question in the above said circumstances does not require any adjudication since for the explanation of above quoted period of 10 months and 19 days, no such allegation is made in the application in question nor any argument is advanced on the said plea, That was a event, which was considered and adjudicated in the order passed by the High Court on 17 -10 -74 on the basis of which the case was remanded to the trial Court. When a specific direction is given by the High Court to make an application under section 5 of the Limitation Act, it was not incumbent either on the High Court or on the trial court to fix any date to file an application because the choice was with the petitioner, if he wanted to j invoke the jurisdiction of the court by making an appropriate application under Section 5 of the Limitation Act, the responsibility rests with him to J move the machinery of the court. In the absence of filing such an application, no duty was cast on the court to intimate the petitioner or to extend invitation for filing the application under section 5 of the Limitation Act on] a particular date. Thus I find that the application under section 5 of Limitation Act was filed after a gross delay for the condonation of which t sufficient cause is made out by the petitioner, which has been rightly dismissed by the trial court on the ground of laches. For the reasons stated hereinabove, there is no merit in the present revision petition, which is hereby dismissed. However, under the circumstances, parties are left to bear their own costs. The record of the trial court be sent back.;


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