Chattisgarh High Court
Vinod Pandey vs Jagnu Kaiwarta on 17 January, 2025
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Digitally signed
by REKHA
SINGH
2025:CGHC:3076
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 155 of 2021
1 - Vinod Pandey S/o Shri Laxmi Kumar Pandey Aged About 61 Years R/o
Seepat Chowk Sarkanda Police Station Sarkanda, District Bilaspur
Chhattisgarh (Owner Of Truck Bearing No. C. G. 10/ C- 4002), District :
Bilaspur, Chhattisgarh
... Appellant
versus
1 - Jagnu Kaiwarta S/o Radhuram Kaiwarta Aged About 48 Years R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh, District : Bilaspur, Chhattisgarh
2 - Smt. Gaukarhin Bai W/o Jagnu Kaiwarta Aged About 40 Years R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh
3 - Rampyari Kaiwarta D/o Jagnu Kaiwarta Aged About 14 Years The Minor,
Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh
4 - Ku. Maheshwari D/o Jagnu Kaiwarta Aged About 12 Years The Minor,
Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh
5 - Ku. Likheshwari D/o Jagnu Kaiwarta Aged About 10 Years The Minor,
Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh
6 - Mukesh Kaiwarta S/o Jagnu Kaiwarta Aged About 8 Years The Minor,
Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village
Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur
Chhattisgarh
7 - Rammanohar Gond S/o Mohan Singh Gond Aged About 25 Years R/o
Village Manikpuri Police Station Kota Chowki Belgahna, District Bilaspur
Chhattisgarh ( Driver Of Truck Bearing No. C. G. 10/ C- 4002)
8 - The Oriental Insurance Company Limited Through Branch Manager,
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Branch Office Rama Trade Center, Near Bus Stand Bilaspur District Bilaspur
Chhattisgarh ( Insurer Of Truck Bearing No. C. G. 10/ C- 4002)
... Respondents
For Appellant : Mr. Vineet Kumar Pandey, Advocate
For Respondent No. 8 : Mr. Akash Shrivastava, Advocate holding the
brief of Mr R.N. Pusty, Advocate
Hon’ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
17/01/2025
1. The appellant/Non-applicant No.1/owner of the offending vehicle has
preferred this appeal according to the provisions of Section 173 of the
Motor Vehicles Act, 1988 against the award passed by the VIth
Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur
(C.G.) in Claim Case No.20/2012 dated 25.01.2014 wherein and
whereby, an award of Rs.3,64,000/- with interest @ 7.5 % per annum
was passed against the owner and driver of the offending vehicle.
2. The appellant has filed this appeal with a delay of 2130 days. An
application for condonation of delay has been preferred under Section
5 of the Limitation Act. It is stated in the application that the learned
Tribunal passed the award on 25.01.2014 fastening the liability on the
owner and driver of the offending vehicle whereas summons was not
duly served upon the appellant, therefore, he could not appear before
the learned Tribunal. It is further stated that the appellant was
proceeded ex parte. It is also pleaded that for the first time, the
appellant came to know about passing the ex parte award on
14.01.2021 and thereafter, he applied for the certified copy of the
award and the other relevant documents and immediately thereafter,
filed an appeal on 18.02.2021.
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3. Mr. Pandey, the learned counsel appearing for the appellant would
submit that the notice was properly not served upon the appellant,
therefore, he could not appear before the learned Tribunal. He would
further submit that the appellant was proceeded ex-parte without
service of notice, therefore, the award passed by the learned Tribunal
is liable to be set aside. He would contend that the appellant has
explained the reasons for the delay properly in the application for
condonation of delay and thus, he would pray to condone the delay.
4. On the other hand, Mr. Akash Shrivastava, the learned counsel
appearing for respondent No.8/Insurance Company would submit that
for the first time, the notice was issued to the appellant on 03.02.2011
and thereafter, the registered notice was sent to the given address
through the registered mode on 14.07.2011. He would further submit
that again a notice was issued to the appellant on 03.09.2011 but those
notices could not be effected upon the appellant, therefore, an
application was moved by the claimants for service of notice through
paper publication and that application was allowed by the learned
Tribunal on 02.11.2011. He would contend that the notice was
published in a local Hindi newspaper ‘Haribhumi’ on 16.12.2011. He
would further contend that despite service of notice through paper
publication, the appellant did not appear before the learned Tribunal,
therefore, vide order dated 10.01.2012, he was proceeded ex-parte.
He would also submit that the learned Tribunal has passed an award
after taking into consideration the material available on the record.
5. Heard learned counsel for the parties and perused the records.
6. Recently, the Hon’ble Supreme Court in the matter of Pathapati
Subba Reddy (Died) by LRs. & Others vs. The Special Deputy
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Collector (LA) reported in 2024 SCC OnLine SC 513 : 2024 4 SCR
241 : 2024 INSC 286 while dealing with the issue of limitation in paras
19, 20, 21, 22, 23, 26 & 30 observed and held as under:-
“19. In Maqbul Ahmad and Ors. vs. Onkar Pratap
Narain Singh and Ors, A.I.R. 1935 PC 85, it had
been held that the court cannot grant an exemption
from limitation on equitable consideration or on the
ground of hardship. The court has time and again
repeated that when mandatory provision is not
complied with and delay is not properly, satisfactorily
and convincingly explained, it ought not to condone
the delay on sympathetic grounds alone.
20. In this connection, a reference may be made to
Brijesh Kumar and Ors. vs. State of Haryana and
Ors, 2014 (4) SCALE 50, wherein while observing,
as above, this Court further laid down that if some
person has obtained a relief approaching the court
just or immediately when the cause of action had
arisen, other persons cannot take the benefit of the
same by approaching the court at a belated stage
simply on the ground of parity, equity, sympathy and
compassion.
21. In Lanka Venkateswarlu vs. State of Andhra
Pradesh & Ors.,[2011] 3 SCR 217 : (2011) 4 SCC
363, where the High Court, despite unsatisfactory
explanation for the delay of 3703 days, had allowed
the applications for condonation of delay, this Court
held that the High Court failed to exercise its
discretion in a reasonable and objective manner.
High Court should have exercised the discretion in a
systematic and an informed manner. The liberal
approach in considering sufficiency of cause for
delay should not be allowed to override substantial
law of limitation. The Court observed that the
concepts such as ‘liberal approach’, ‘justice- oriented
approach’ and ‘substantial justice’ cannot be
employed to jettison the substantial law of limitation.
22. It has also been settled vide State of Jharkhand
& Ors. vs. Ashok Kumar Chokhani & Ors., AIR
2009 SC 1927, that the merits of the case cannot be
considered while dealing with the application for
condonation of delay in filing the appeal.
23. In Basawaraj and Anr. vs. Special Land
Acquisition Officer, [2013] 8 SCR 227 : (2013) 14
SCC 81, this Court held that the discretion to
condone the delay has to be exercised judiciously
based upon the facts and circumstances of each
case. The expression ‘sufficient cause’ as occurring
in Section 5 of the Limitation Act cannot be liberally
interpreted if negligence, inaction or lack of bona fide
5is writ large. It was also observed that even though
limitation may harshly affect rights of the parties but it
has to be applied with all its rigour as prescribed
under the statute as the courts have no choice but to
apply the law as it stands and they have no power to
condone the delay on equitable grounds.
26. On a harmonious consideration of the provisions
of the law, as aforesaid, and the law laid down by this
Court, it is evident that:
(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end or
cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has to
be construed liberally;
(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause
of substantial justice may be kept in mind but the
same cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary
in nature and may not be exercised even if sufficient
cause is established for various factors such as,
where there is inordinate delay, negligence and want
of due diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled
to the same benefit if the court is not satisfied with
the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the delay
and condoning the delay for the reason that the
conditions have been imposed, tantamounts to
disregarding the statutory provision.”
30. The aforesaid decisions would not cut any ice as
imposition of conditions are not warranted when
sufficient cause has not been shown for condoning
the delay. Secondly, delay is not liable to be
condoned merely because some persons have been
granted relief on the facts of their own case.
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Condonation of delay in such circumstances is in
violation of the legislative intent or the express
provision of the statute. Condoning of the delay
merely for the reason that the claimants have been
deprived of the interest for the delay without holding
that they had made out a case for condoning the
delay is not a correct approach, particularly when
both the above decisions have been rendered in
ignorance of the earlier pronouncement in the case of
Basawaraj (supra).”
7. In the present case, the claim case was filed by the claimants on
03.01.2011. On 03.02.2011, an order was passed to issue a notice to
the respondents. Vide order dated 14.07.2011, the claimants were
directed to serve notice to the appellant through registered post. It
appears that the appellant avoided the service of notice even though
again on 03.09.2011, an order was passed to pay process fee for
service of notice on the appellant. When the appellant did not turn up,
an application was moved under Order 5 Rule 20 of CPC for service of
notice through paper publication and that application was allowed by
the learned Tribunal vide order dated 02.11.2011. The notice was
published in a local Hindi newspaper ‘Haribhumi’ on 16.12.2011 and
thereafter, the appellant was proceeded ex-parte on 10.01.2012.
8. The learned Tribunal thereafter passed an award on 25.01.2014.
9. In the application moved by the appellant for condonation of delay, he
has not disclosed the correct facts. He stated that the notice could not
be served upon the appellant but he was proceeded ex-parte.
10. Taking into consideration the fact that there is an enormous delay of
2130 days; the same has not been explained properly by the appellant;
the notice was served upon the appellant through paper publication
and further considering the law laid down by the Hon’ble Supreme
Court in the matter of Pathapati Subba Reddy (supra), in the opinion
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of this Court, the application for condonation of delay is liable to be and
is hereby rejected.
11. Consequently, the appeal is also dismissed. No cost(s).
Sd/-
(Rakesh Mohan Pandey)
Judge
Rekha
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