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Patna High Court

Bhushan Prasad Gupta @ Bhushan Gupta and Anr.versusShrimati Aruna Devi Ors.

Decided
Disposal
DISMISSED

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

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,
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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.

U


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