Patna High Court
Bhushan Prasad Gupta @ Bhushan Gupta and Anr.versusShrimati Aruna Devi Ors.
- Decided
- Disposal
- DISMISSED
- Bench
- RAMESH CHAND MALVIYA
Holding
The petitioners did not establish sufficient cause for condonation of delay, and the trial court's order stands.
Summary
The petitioners, sons of the deceased, sought restoration of a probate suit dismissed for default in 2002 and filed a condonation application under Section 5 of the Limitation Act after a delay of more than five years, citing the elder brother's prolonged heart illness. The trial court rejected the condonation, finding the medical evidence insufficient and noting the lack of any explanation for the second petitioner's inaction, thereby dismissing the restoration request. On revision, the High Court examined whether the trial court had committed a jurisdictional error or material irregularity in refusing condonation. Relying on precedents that the term “sufficient cause” must be interpreted liberally yet requires concrete proof of continuous incapacity, the Court held that the petitioners failed to establish such cause. Consequently, the Court affirmed the trial court’s discretion and dismissed the civil revision.
Issues considered
- Whether the trial court erred in refusing to condone the delay under Section 5 of the Limitation Act.
- Whether the trial court committed a jurisdictional error or material irregularity in dismissing the restoration application.
Legislation cited
- Code of Civil Procedure, 1908 — s. 115, 151
- Limitation Act, 1963 — s. 5
Subjects
- Civil Revision
- Condonation of Delay
- Limitation Act
- Probate Restoration
- Sufficient Cause
- Discretionary Jurisdiction
- Section 115 CPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.84 of 2013
======================================================
1. Bhushan Prasad Gupta @ Bhushan Gupta, Son of Late Shivjatan Prasad
Gupta, Resident of Village- Shahpur Police Station- Sonbarsa, District-
Saharsa.
2. Birendra Prasad Gupta, Son of Late Shivjatan Prasad Gupta, Resident of
Village- Shahpur, Police Station- Sonbarsa, District- Saharsa.
... ... Petitioner/s
Versus
1. Shrimati Aruna Devi, Wife of Shri Uday Shankar Gupta, Resident of
Village- Basmatiya, Police Station- Narpataganj, District- Arariya.
2. Smt. Gulab Devi, Wife of Shri Madhukar Gupta, Resident of Village-
Pothiya, Police Station- Falka, District- Katihar.
3. Manisha Kumari, Daughter of Manoj Kumar Gupta Minor Daughter of
Manoj Kumar Gupta through Father and Guardian Manoj Kumar Gupta, Son
of Krishnavallabh Prasad Gupta, Resident of Village- Choutham, Pipra, P.S.
Choutham, District- Khagariya.
4. Lalita Kumari Daughter of Manoj Kumar Gupta Minor Daughter of Manoj
Kumar Gupta through Father and Guardian Manoj Kumar Gupta, Son of
Krishnavallabh Prasad Gupta, Resident of Village- Choutham, Pipra, P.S.
Choutham, District- Khagariya.
5. Manoj Kumar Gupta, Son of Krishnavallabh Prasad Gupta, Resident of
Village- Choutham, Pipra, Police Station- Choutham, District- Khagariya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Durgesh Kumar, Advocate
For the Respondent/s : Mr. Amarnath Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV ORDER
28 14-05-2026 Heard the learned counsel for the petitioners and
learned counsel for the Opposite Parties
2. The present Civil Revision Application has been
preferred under Section 115 of the Code of Civil Procedure,
1908 (hereinafter referred to as ‘CPC’), by the petitioners, who
seek to challenge the legality, propriety and correctness of the
order dated 06.03.2013 passed by the learned District Judge,
Patna High Court C.R. No.84 of 2013(28) dt.14-05-2026
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Saharsa (hereinafter referred to as ‘Trial Court’) in
Miscellaneous Case No. 19 of 2006, whereby the learned Trial
Court declined to condone the delay under Section 5 of the
Limitation Act (hereinafter referred to as ‘Act’) and
consequently refused to restore Probate Case No. 04 of 2001,
which had earlier been dismissed for default.
3. The facts of the case in brief is that the petitioners,
who are sons of Late Shivjatan Prasad Gupta and residents of
Village Basmatiya within Police Station Narpatganj in the
District of Araria, had instituted Probate Case No. 04 of 2001
before the learned Trial Court for grant of probate in respect of a
Will dated 07.09.2000 said to have been executed by Late
Raghunath Prasad Gupta in their favour. It appears from the
records that the said probate case, which was contested in its
initial stage, ultimately came to be dismissed for default on
22.08.2002 due to non-appearance and lack of proper pairvi on
behalf of the petitioners. Subsequently, after a considerable
lapse of time, the petitioners filed an application under Order IX
Rule 4 read with Section 151 of the CPC, which was registered
as Miscellaneous Case No. 19 of 2006, seeking restoration of
the probate case. Along with the said application, a petition
under Section 5 of the Act was also filed praying for
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condonation of delay in filing the restoration petition. The delay,
which was of more than five years, was sought to be explained
on the ground that petitioner no. 1, namely Bhushan Prasad
Gupta, who was the elder brother and the person primarily
conducting the case, had fallen seriously ill due to a heart
ailment on 28.06.2002 and remained under medical treatment
until 11.09.2006. In support of the said plea, the petitioners
examined three prosecution witnesses which are; PW-1
(Bhushan Prasad Gupta), PW-2 (Birendra Prasad Gupta) and
PW-3 (Umesh Prasad Gupta). They also produced documentary
evidence including
Exhibit-1: a certified copy of the order
dated 22.08.2002,
Exhibit-2: an application dated 13.09.2006,
and a medical certificate issued by Dr.
Shashi Bhushan Kumar on 11.09.2006,
which was marked for identification. The
said medical certificate, which has been
brought on record, purported to show that
Bhushan Prasad Gupta was under
treatment for heart disease during the
aforesaid period.
4. The opposite parties appeared in the miscellaneous
proceeding and contested the claim of the petitioners by filing a
rejoinder, wherein it was specifically asserted that the delay in
filing the restoration application was inordinate and that the
explanation offered by the petitioners was neither satisfactory
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nor supported by reliable evidence. It was contended that the
medical certificate produced by the petitioners was vague and
did not disclose details such as the nature of treatment, place of
treatment or supporting medical records. It was further
contended that petitioner no. 2 had not explained his inaction
and that the petitioners had been grossly negligent in
prosecuting the case.
5. The learned Trial Court after considering the oral
and documentary evidence, recorded a finding that the
petitioners had failed to establish sufficient cause for
condonation of delay. The learned Trial Court observed that the
petitioners had not produced any prescription, medical record or
hospital document to substantiate continuous illness for such a
prolonged period of more than five years. It was also observed
that there was no explanation as to why petitioner no. 2 could
not pursue the matter independently. On the basis of such
findings, the learned Trial Court rejected the application under
Section 5 of the Act and consequently dismissed the restoration
application. The petitioners feeling aggrieved by the said order
have invoked the revisional jurisdiction of this Hon’ble Court
on the ground that the learned Trial Court has exercised its
jurisdiction with material irregularity and has failed to adopt a
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justice-oriented approach.
6. Learned counsel for the petitioners while assailing
the impugned order submitted that the learned Trial Court has
failed to exercise jurisdiction vested in it in accordance with
settled legal principles governing condonation of delay. It is
contended that the approach adopted by the learned Trial Court
is overly technical and defeats the very object of Section 5 of
the Act, which is intended to advance substantial justice. It is
argued that the expression “sufficient cause” is required to be
construed liberally and in a pragmatic manner, keeping in view
the realities of life. Learned counsel for petitioners further
submitted that the learned Trial Court has erred in applying a
strict standard of proof, particularly in relation to the medical
evidence and has ignored the consistent oral testimony adduced
by the petitioners. It is also emphasized that the sufficiency of
cause is to be judged on the touchstone of reasonableness and
not on mathematical precision.
6.i. Learned counsel for the petitioners further
submitted that the learned Trial Court has failed to appreciate
that procedural law is designed to facilitate justice and not to
obstruct it and reliance was placed on the well-established
principle that courts should prefer adjudication on merits rather
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than non-suiting a party on technical grounds and it is further
stated the denial of restoration would result in denial of
substantive rights. It is also contended on behalf of learned
counsel for the petitioners that the learned Trial Court has
misdirected itself in scrutinizing the explanation with undue
suspicion instead of examining whether the explanation when
taken as a whole, constitutes a bonafide and reasonable cause.
Learned counsel for the petitioners also submitted that minor
inconsistencies or absence of elaborate documentation cannot be
a ground to reject an otherwise plausible explanation and it is
further stated that the discretion vested in the Court under
Section 5 of the Act must be exercised to promote justice and
not in a manner which results in miscarriage of justice. Learned
counsel for the petitioners also submitted that the impugned
order reflects a rigid and pedantic approach which is contrary to
the settled jurisprudence that courts should adopt a liberal stance
where no malafide or deliberate negligence is attributable.
6.ii. Learned counsel for the petitioners also submitted
that the refusal to condone delay has the effect of foreclosing the
petitioners’ right to have their claim adjudicated on merits,
which is a serious consequence. It is further contended that the
balance of convenience lies in favour of restoration as no
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irreparable prejudice would be caused to the opposite parties,
who would still have the opportunity to contest the matter.
Lastly, it is submitted by Learned counsel for the petitioners that
the impugned order is vitiated by material irregularity and
improper exercise of jurisdiction, and is therefore liable to be set
aside.
7. Learned counsel for the Opposite Parties submitted
that the present revision petition is wholly devoid of merit and
does not warrant interference within the limited scope of
Section 115 of the CPC. At the outset, it was contended that the
power to condone delay is discretionary in nature and the same
has been exercised by the learned Trial Court upon due
consideration of the material on record. It is further stated on
behalf of Opposite Parties that unless such discretion is shown
to have been exercised arbitrarily, capriciously or perversely, the
revisional Court ought not to interfere. It is further contended by
learned counsel on behalf of Opposite Parties that the concept of
“sufficient cause” cannot be stretched to such an extent that it
renders the law of limitation futile. The burden lies heavily on
the applicant to furnish a cogent, credible and convincing
explanation, particularly when the delay is substantial. Learned
counsel for the opposite parties also submitted that vague,
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general or unsubstantiated pleas do not satisfy the legal
requirement and further emphasized that the law of limitation is
founded on sound public policy and is not a mere technicality.
Learned counsel also stated that entertaining stale claims would
defeat this fundamental principle.
7.i. Learned counsel for the opposite parties further
submits that the petitioners have failed to demonstrate due
diligence and bonafide conduct, which are essential
considerations for invoking the discretionary relief of
condonation. It is contended that the explanation offered does
not inspire confidence and falls short of the standard required
under law. It is also contended that the learned Trial Court has
rightly scrutinized the explanation and has recorded findings
based on appreciation of evidence, which do not suffer from any
jurisdictional error. It is further submitted on behalf of Opposite
Parties that the revisional jurisdiction is not intended to re
appreciate evidence or substitute the discretion of the learned
Trial Court with that of the High Court. Learned counsel for the
opposite parties also submitted that permitting restoration in
such circumstances would unsettle the settled positions and
cause serious prejudice, thereby undermining the certainty and
stability of legal proceedings. Lastly, it was contended that on
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behalf of Opposite Parties that the revision application be
dismissed, as no case for interference has been made out.
8. The core issue that arises for determination in this
revision is “Whether the learned Trial Court committed
jurisdictional error or material irregularity in refusing to
condone the delay and dismissing the restoration application”?
9. This Court has carefully considered the
submissions and perused the entire record with due attention to
the reasoning assigned by the learned Trial Court. At the outset,
it is necessary to delineate the scope of interference under
Section 115 of the CPC. The revisional jurisdiction is
supervisory and not appellate in nature. Interference is
warranted only where the subordinate court has either exercised
a jurisdiction not vested in it, or has failed to exercise
jurisdiction so vested, or has acted in the exercise of its
jurisdiction illegally or with material irregularity. Thus, unless
the impugned order discloses perversity, misapplication of legal
principles, or manifest injustice, this Hon’ble Court would be
slow in interfering with a discretionary order.
10. The controversy in the present case revolves
around the refusal to condone delay under Section 5 of the Act.
It is well settled that the expression “sufficient cause” is elastic
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and must receive a liberal construction so as to advance
substantial justice. However, such liberal approach is not
unbridled. The applicant must demonstrate that the delay was
occasioned despite acting with reasonable diligence and that
there was no negligence, inaction or want of bonafides.
11. In the case of Basawaraj and Anr. v. Special
Land Acquisition Officer (2013) 14 SCC 81, the Hon’ble Apex
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 Act cannot be liberally interpreted if
negligence, inaction or lack of bonafide is 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.
“12. It is a settled legal proposition that
law of limitation may harshly affect a
particular party but it has to be applied
with all its rigour when the statute so
prescribes. The Court has no power to
extend the period of limitation on equitable
grounds. “A result flowing from a statutory
provision is never an evil. A Court has no
power to ignore that provision to relieve
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what it considers a distress resulting from
its operation." The statutory provision may
cause hardship or inconvenience to a
particular party but the court has no choice
but to enforce it giving full effect to the
same. The legal maxim dura lex sed lex
which means “the law is hard but it is the
law”, stands attracted in such a situation. It
has consistently been held that,
“inconvenience is not” a decisive factor to
be considered while interpreting a statute.”
“15. The law on the issue can be
summarised to the effect that where a case
has been presented in the court beyond
limitation, the applicant has to explain the
court as to what was the “sufficient cause”
which means an adequate and enough
reason which prevented him to approach
the court within limitation. In case a party
is found to be negligent, or for want of bona
fide on his part in the facts and
circumstances of the case, or found to have
not acted diligently or remained inactive,
there cannot be a justified ground to
condone the delay. No court could be
justified in condoning such an inordinate
delay by imposing any condition
whatsoever. The application is to be
decided only within the parameters laid
down by this Court in regard to the
condonation of delay. In case there was no
sufficient cause to prevent a litigant to
approach the court on time condoning the
delay without any justification, putting any
condition whatsoever, amounts to passing
an order in violation of the statutory
provisions and it tantamounts to showing
utter disregard to the legislature.”
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12. Also in the case of Shivamma (Dead) by LRs v.
Karnataka Housing Board & Ors. (Arising out of Special
Leave Petition (C) No. 10704 of 2019. The two-Judge Bench
comprising Hon’ble Justice J.B. Pardiwala and Hon’ble
Justice R. Mahadevan observed,
“… as is manifest from the entire discussion
above, for the purpose of condonation of
delay in terms of Section 5 of the Limitation
Act, the delay has to be explained by
establishing the existence of “sufficient
cause” for the entirety of the period from
when the limitation began till the actual
date of filing. In other words, if the period
of limitation is 90-days, and the appeal is
filed belatedly on the 100th day, then
explanation has to be given for the entire
100-days.”
“As such, under Section 5 of the Limitation
Act, for the purpose of seeking condonation
of delay in filing of an appeal or
application, as the case may be, beyond the
stipulated period of limitation, the delay in
the filing has to be explained by
demonstrating the existence of a “sufficient
cause” that resulted in such delay for both
the prescribed period of limitation as-well
as the period after the expiry of limitation,
up to actual date of filing of such appeal or
application, as the case may be, or to put it
simply, explanation has to be given for the
entire duration from the date when the
clock of limitation began to tick, up until
the date of actual filing, for seeking
condonation of delay by recourse to Section
5 of the Limitation Act.”
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13. Applying the aforesaid principles to the facts of
the present case, it is evident that the delay in question is not
marginal but extends to more than five years. Such an inordinate
delay casts a heavier burden on the petitioners to furnish a
cogent, consistent and credible explanation covering the entire
period of delay. It is not sufficient to assign a general cause; the
explanation must be such as would persuade the Court that the
petitioners were prevented by circumstances beyond their
control from taking timely steps.
14. The explanation offered is founded primarily on
the alleged prolonged illness of petitioner no. 1. While illness
can, in appropriate cases, constitute sufficient cause, the Court is
required to assess whether the nature, duration and effect of
such illness reasonably prevented the party from prosecuting the
proceeding. In the present case, the material on record as
appreciated by the learned Trial Court, does not satisfactorily
establish continuous incapacity for the entire duration. The
medical document relied upon is not corroborated by
contemporaneous records which could indicate sustained
treatment or inability to act. The evidentiary value of such a
document in the absence of supporting material, was therefore
rightly scrutinized.
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15. Equally significant is the position of petitioner no.
2, who was admittedly a co-applicant in the original proceeding.
The explanation does not adequately address why no steps were
taken by him independently to pursue the matter. The obligation
to prosecute a case cannot be said to rest exclusively upon one
party when there are multiple interested litigants. The absence
of any convincing reason for complete inaction on his part
reinforces the inference of lack of due diligence. Another aspect
which merits consideration is the conduct of the petitioners
during the relevant period. There is no indication of any effort to
ascertain the status of the proceeding for a prolonged duration,
nor is there any material to suggest that they remained vigilant
about their legal remedy. The principle “vigilantibus non
dormientibus jura subveniunt” applies with full force, and the
Court cannot overlook prolonged indifference under the guise of
liberal interpretation.
16. This Court does not find that the Impugned order
suffers from perversity or that irrelevant considerations have
been taken into account. Nor does it appear that relevant factors
have been ignored. It is also well settled that discretion
exercised by a court in matters relating to condonation of delay
should not be lightly interfered with unless it is shown that the
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discretion has been exercised arbitrarily or on wholly untenable
grounds. In the present case, the reasoning of the learned Trial
Court reflects a conscious application of mind to the
requirement of explaining the delay and cannot be said to be
either arbitrary or capricious.
17. In view of the foregoing discussion, this Court is
of the considered opinion that the petitioners have failed to
establish sufficient cause for condonation of delay and that the
learned Trial Court has not committed any jurisdictional error or
material irregularity in passing the impugned order.
18. Accordingly, the Civil Revision No. 84 of 2013 is
dismissed.
19. There shall be no order as to costs.
(Ramesh Chand Malviya, J)
Anand Kr.
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