Bishwanath Prasad Jaiswal Alias Bishwanath v. Major Rabindra Prasad
1991-01-03
BINOD KUMAR ROY
body1991
DigiLaw.ai
Judgment Binod Kumar Roy, J. 1. The limitation petition (Fiag-L) has been out up for consideration. The opposite party files a counter affidavit in court. 2. This Civil Revision, application, under Sec. 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as the Act) against an order dated 22.3.1990, was filed on 8.8.1990. According to the calculations made by the stamp reporter the limitation expired on 30.6.1990. 3. The petitioners in their limitation petition have, by and laree stated these facts for constituting sufficient cause within the meaning of Sec. 5 of the Limitation Act: (i) The period of limitation for filing this revision expired on 30.7.1990. (ii) Petitioner No. 1, was looking after the pairvi of the case, was suffering from jaundice since 25.6.1990 and remained ill till 3.8.1990. His condition was serious and he was not in a position to move. He was under the treatment of Dr. Shaym Bihari Pandey. When he recovered from illness and advised by the Doctor that he is fit to resume his duty, he came to Patna on 6.8.1990 and contacted the learned Counsel who, after going through the records, prepared the draft of the revision application and filed it on 8.8.1990. (iii) There was no intentional laches on the part of the petitioners in not filing the revision application within time. The delay occurred was due to the illness of petitioner No. 1. (iv) The petitioners will suffer irreparable loss and injury if the delay is not condoned and is it thus desirable in the interest of justice that delay be condoned. 4. In the counter affidavit filed today, it has been stated to the following effect: (i) The provisions of the Limitation Act are not applicable. (ii) The remedy of the petitioners, if at all, was to file review under Sec. 14(9) of the Act and that also not having been done, the petitioners are not entitled to any relief whatsoever either from this Court or even from the court below and in that view of the matter, the petition for condoning the delay should be rejected. (iii) Even assuming that the provisions of the Limitation Act are applicable, no cogent or convincing ground including each days explanation has been furnished. 5. Heard Mr. Ram Pravesh Sharma, learned Counsel for the petitioners, and Mr.
(iii) Even assuming that the provisions of the Limitation Act are applicable, no cogent or convincing ground including each days explanation has been furnished. 5. Heard Mr. Ram Pravesh Sharma, learned Counsel for the petitioners, and Mr. Bibhuti Prasad Pandey, learned Counsel for the Opposite Party. 6. The affidavit attached with the limitation petition has been sworn by petitioner No. 1 himself. To support the plea of illness, a copy of the certificate of the Doctor has also been attached. The fact of illness of petitioner No. 1, his being pairvikar and the correctness of the certificate of the Doctor concerned has fairly not been disputed by Mr. Pandey at the Bar or in the counter. 7. In my view, the contention of Mr. Pandey that the provisions of the Limitation Act are not applicable to the present case, is not valid and tenable. He even failed to cite any direct judgment to support his proposition except stating that this Court in some election matter has held that the provisions of the Limitation Act are not applicable to the cases tiled under the provisions of the Representation of Peoples Act and the ratio laid dower therein applies here also, while exercising the jurisdiction under Sec. 14(8) of the Act, this Court exercises the jurisdiction of a civil proceeding In view of Sec. 29(2) of the Limitation Act, therefore, I am of the view that Sec. 5 of the Limitation Act is applicable, I do not see any bar in Sec. 14(8) of the Act refraining this Court from exercising its discretion in not condoning the delay. Accordingly, I reject the submission of Mr. Pendey. I have been informed at the Bar that similar contention made before this Court for holding non-applicability of the Limitation Act to the cases under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act have been overruled recently by the Supreme Court holding that the Limitation Act applies to the provisions of the said Act as well. 8. Coming to the next submission of Mr. Pandey that this petition should be dismissed because the petitioners have failed to file a review application as contemplated under Sec. 14(9) of the Act, after the expiry of sixty days prescribed for filing a revision application as contemplated under Sec. 14(8) of the Act, I hold that this contention is mis-conceived.
8. Coming to the next submission of Mr. Pandey that this petition should be dismissed because the petitioners have failed to file a review application as contemplated under Sec. 14(9) of the Act, after the expiry of sixty days prescribed for filing a revision application as contemplated under Sec. 14(8) of the Act, I hold that this contention is mis-conceived. There is a well settled distinction between a revision and a review. Sec. 14(9) of the Act talks of preference of a review application. No further discussion is needed to point out the well settled distinctions between revision and review except to point out that under Sec. 14(8) of the Act, the jurisdiction has been vested in this Court, if it finds sufficient reason to examine the legality and propriety of an order passed by the court while adjudicating the dispute between the parties under Sec. 14 of the Act. 9. Now, I come to the last contention of Mr. Pandey that each days delay not having been explained, even assuming that the provisions of the Limitation Act are applicable, this revision application is fit to be dismissed. In Collector, Land Acquisition V/s. Most. Katiji and Ors. , the Supreme Court, while considering the applicability and scope of Sec. 5 of the Limitation Act held as follows: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides, A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides, A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing-on-the-buck ethos delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non-grant status. The Courts therefore, have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits its preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of heating to both the sides. Mst.
The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of heating to both the sides. Mst. Katijis case aforementioned was approved subsequently by the Supreme Court in G. Ramegowda V/s. The Special Land Acquisition Officer, Bangalore, reported in -- . It is true that under Sec. 14(8) of the Act the period of limitation prescribed is only 60 days. It is also equally true that under the Limitation Act itself, the general period prescribed for filing a revision application before this Court is 90 days. In the said view of the matter, I hold further that the petitioners were misled by the said practice prevalent that the period of limitation for filing a revision application is 90 days. Keeping in view the ratio of Mr. Katijis case (supra) and other facts and circumstances stated above, I hold that there was "sufficient cause" for not filing this civil revision application within the statutory period of sixty days and that cause of justice will frustrate if I do not condone the delay in filing this revision application and prevent the hearing of civil revision on the question of its admission. The limitation petition is, accordingly allowed and the delay in filing this revision application is condoned.