G. K. SHARMA, J. - (1.) WE have heard the appellants' application for condonation of delay in filing this appeal. This appeal under section 18 of the Rajasthan High Court Ordinance is against the judgment dated 2. 4. 85 of a learned single judge of this court in a civil first appeal.
(2.) THE impugned judgment of the learned single judge was passed on 2. 4. 85 and this special appeal has been filed on 11. 11. 87 after the lapse of more than one year and seven months when the prescribed limitation for filing such appeal is 30 days only. THE time taken for obtaining the certified copy of the impugned judgment was only a few days and, therefore, even after excluding the same there is inordinate delay in filing the appeal. For the purpose of appreciating the arguments advanced for condonation of delay, only a few facts are material and they are now stated. The learned single judge dismissed the first appeal on 2. 4, 85. The appellant changed his initial counsel in July 1986 after some correspondence with him and the new counsel applied on 7. 8. 86 for obtaining the certified copy of the judgment which was delivered to him on 11. 8. 86. Thereafter, the appellants instead of filing this special appeal chose to file a special leave petition in the Supreme Court on 26. 11. 86 against the judgment of the learned single Judge. The Supreme Court after notice to the other side dismissed the SLP on 26. 10. 87 observing that an appeal lies to the Division Bench of the High Court. The appellants filed this special appeal only on 11. 11. 87 and not soon after dismis-sal of the SLP on 26. 10. 87. Admittedly the appellants are required to explain the delay at several stages. Even if the period between 26. 10. 86 and 26. 10. 87 when the SLP was pending in the Supreme Court is excluded, the period between 2. 4. 85 to 26. 10. 86 and also between 26. 10. 87 when the SLP was dismissed and 11. 11. 87 when this special appeal was filed have to be explained. Learned counsel for the appellants relied essentially on the misdemeanour of appellants, original counsel to explain this delay and referred to the allegations made in the SLP before the Supreme Court and also here against the earlier counsel. It was urged that the appellants were in Goa and later in Delhi and, therefore, they could not do anything other than engaging a counsel to conduct the case on their behalf. It was argued placing reliance on Rafiq Vs. Munshilal (1) that the appellants should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. Learned counsel for the appellants finally urged that a lenient view be taken in these circumstances to relieve the appellants of the hardship which has resulted from the misdemeanour of the appellants' earlier counsel who was later changed by the appellants in July, 1986. In reply learned counsel for the respondents placed reliance on the decision in Ramlal V. Rewa Coalfields Ltd. (2) and contended that the delay of each day must be explained and the benefit which has accrued to the respondents by the lapse of limitation should not be casually taken away. Learned counsel for the respondents argued that the appellants are well placed persons of whom the appellant No. 2 was then the Chief Secretary, Goa and later Chief Secretary of Delhi and, therefore, there is no occasion to assume that the appellants did not appreciate even the ordinary implications of this delay. Learned counsel for the respondents also relied on a letter dated December 31, 1985 from the appellant No. 2 to his earlier counsel which indicates that the appellants were fully aware even then of the judgment of the learned single judge and yet no action was taken by them to file an appeal within time. He also contended that even the period after dismissal of the SLP on 26. 10. 87 is not explained. On this basis learned counsel for the respondents argued that there is no ground whatsoever to condone the delay. In our opinion, the contention of the learned counsel for the respondents has to be accepted and it has to be held that no ground has been made out to condone the inordinate delay in filing of this appeal. Even after making a most liberal construction in appellants' favour and on this basis excluding the entire period during which the earlier counsel of the appellants was incharge of the case, we find a large period for which no cogent explanation has been given to explain the delay. The first appeal was dismissed by the learned single judge on 2. 4. 85. The appellant No. 2's letter dated 31. 12. 85 to his earlier counsel shows that he was fully aware of the decision of the learned single judge much earlier. Inspite of this fact even if we further exclude the period upto July, 1986 when the appellants changed their initial counsel and engaged a new counsel who applied for the certified copy of the judgment of the learned single judge on 7. 8. 86 and obtained the same on 11. 8. 86. we find that the period even from 11. 8. 86 to the date of filing the SLP on 26. 10. 86 i. e. for about 2-1/2 months is not satisfactorily explained. Once again the period of ore year during which the SLP was pending from 26. 10. 86 to 26. 10. 87 being excluded, the remaining period of about two weeks from 26. 10. 87 to filing of this appeal on 11. 11. 87 is not sufficiently explained. From the above it follows that even if the most liberal construction of sec. 5 of the Limitation Act is made in favour of the appellants and the entire period during which they continued to engage their earlier counsel, on whose misdemeanour they relied for condonation of delay, is excluded, then also the period between 11. 8. 86 and 26. 10. 86 for atleast over two months and finally the period of about two weeks from 26. 10. 87 to 11. 11. 87 remains unaccounted. The result is that a minimum of atleast 2-1/2 months, if not three months, co\ered by these two periods remains unaccounted for which no satisfactory explanation has been offered by the appellants when the prescribed period of limitation for filing such an appeal is only 30 days. This consequence follows from admitted facts even if the arguments of the learned counsel for the appel-lants are accepted and the appellants are not penalised for the alleged misdemeanour of their earlier counsel.
(3.) SINCE considerable emphasis was laid from both the sides on a proper construction of section 5 of the Limitation Act, it would be appropriate to quote the principle enunciated by the Supreme Court in Ramlal's case (supra) which has been applied in the decisions thereafter. This principle is as under : - "in construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna V. Chathappan, ILR 13 Mad. 269. "section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is impugnable to the appellant. " From the above undisputed facts it is obvious that atleast negligence and inaction of the appellants is obvious from the absence of any logical account being given by them to explain the period of over two months in filing the SLP in the Supreme Court after engaging a counsel and getting a certified copy of the impugned judgment and in again delaying the filing of this special appeal by another two weeks after dismissal of the Special Leave Petition. Consequently it follows that even on a liberal construction of Section 5 of the Limitation Act as suggested by learned counsel for the appellants, no ground has been made out by the appellants to condone the inordinate delay in filing this appeal. The application and consequently the appeal are dismissed. . ;