District Panchayat, Junagadh v. President,seva Sahakari Mandli LIMITED
1998-09-30
S.K.KESHOTE
body1998
DigiLaw.ai
S. K. KESHOTE, J. ( 1 ) BY this civil application prayer has been made by the appellant- original plaintiff-District Panchayat, Junagadh, for condonation of delay of 120 days caused in filing of the first appeal against the judgment and decree passed by the 3rd Joint civil Judge, S. D. , Junagadh, in Special Civil Suit No. 49 of 1990 decided on 29th April, 1993. Under this judgment and decree the suit filed by the appellant-plaintiff against the defendant -respondent for recovery of Rs. 79,109/- has been dismissed. ( 2 ) IN this civil application the grounds given for condonation of delay of 120 days caused in filing of the appeal are follows: (i) That the applicant has so many branches in the department and Junagadh district is very much big district in Gujarat. " (II) The concerned authority is naturally very busy in so many work. (iii) Here, the concerned department is Roads and Bulidings Department, when the decree was passed and the information received from the advocate of department. Thereafter, on title this fact was written and there was requirement of obtaining certified copy. The applicant informed the advocate for certified copy and it was applied on 5. 5. 1993 and received on 15. 6. 1993. Then again the judgment and decree was put before the concerned authority for taking any decision. (iv) Because of the heavy burden of work, the decision could not be taken in time. Meanwhile the concerned authority was transferred and other District development Officer has taken charge. Therefore, again time has passed. (v) Thereafter, the applicant had to engage an advocate for filing the appeal and more days passed. All this time has passed with bonafide intention. There was no bad intention or mala fide intention. Hence because of the bona fide mistake the delay in filing the first appeal may be granted. " ( 3 ) IT has next been stated in the application that "the applicant has very good case on merits and if the application is not granted, then there would be irreparable loss on the part of the applicant. On the other hand the opponent has no loss if the application is granted".
" ( 3 ) IT has next been stated in the application that "the applicant has very good case on merits and if the application is not granted, then there would be irreparable loss on the part of the applicant. On the other hand the opponent has no loss if the application is granted". Whether these grounds given constitute and furnish sufficient cause and explanation for this inordinate delay in filing of this appeal, it is fruitful to have reference to the decision of the Apex Court in the case of P. K. Ramachandran vs. State of Kerala reported in 1997 (7) SCC 556 . In Para No. 4, 5 and 6 thereof the Court held as under;"4. That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12-5-1995, is; ". . . . at that time the Advocate Generals office was fed-up with so many arbitration matters (sic) equally important to this case were pending for consideration as per the directions of the Advocate General on 2. 9. 1995. " 5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub-Judge, kollam on 30. 10. 1993, the scope for filing of the appeal was examined by the district Government Pleader, Special Law Officer, Law Secretary and the advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18. 1. 1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days. 6.
We are not satisfied that in the facts and circumstances of this case, any explanation much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days. 6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limtation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. " ( 4 ) THIS application has come up for consideration before this Court on 3rd August, 1998. After going through the aforesaid contents of the civil application, this Court was not satisfied on the point that the applicant-appellant has made out ground for condonation of delay caused in filing the appeal. Learned counsel for the applicant therefore, prayed for time to file additional affidavit, and time was granted. The applicant appellant filed further affidavit of the Deputy "executive Engineer, R and B Department, sub Division II Una. Earlier, in support of the application some other officer had filed the affidavit. First of all it is to be noted that in the application those facts which have now been given out in the further affidavit have not been mentioned, for which I do not find any explanation set forth in the affidavit. Be that as it may. ( 5 ) I consider it to be proper to briefly refer to the contents of the affidavit also in this judgment. The deponent has stated on oath that the judgment in this case has been pronounced on 29th May, 1993. It is not in dispute that certified copy of the judgment was delivered to the advocate of the appellant by the Court on 15th June, 1993. The advocate of the applicant-appellant had informed by letter dated 25th June, 1993 that the suit has been dismissed and appeal is required to be filed. This letter was received by the appellant in the office on 8th July, 1993. I may pose here.
The advocate of the applicant-appellant had informed by letter dated 25th June, 1993 that the suit has been dismissed and appeal is required to be filed. This letter was received by the appellant in the office on 8th July, 1993. I may pose here. The deponent has not given out any reason whatsoever for this ten days taken by the advocate in writing letter and sending certified copy to the applicant-appellant. Similarly, a period of 13 days has been taken in receipt of this letter which has been from Junagadh itself. In this affidavit learned counsel for the appellant admits that at page 2, line No. 19, the date 20th June, 1993 is incorrect. It should be 20th July, 1993. I am constrained to observe that these mistakes are not of ordinary nature, but these are very substantial; and no body cares to read the pleadings or the affidavit before the same are presented in the Court. However, I am reading the date as 20th July, 1993. After receipt of this judgment about 12 days have been taken in placing the file before the District Development Officer. The worst part is that the District Development Officer has taken more than one month and 22 days in sending the file to the President of the District Panchayat. There is no explanation whatsoever good, bad or indifferent-for this long period of one month and 22 days taken by the District Development Officer in sending the papers to the President of the District panchayat. However, the president of the District Panchayat has taken decision on the file for filing of appeal within reasonable time. On 25th August, 1993 the advocate of the applicant-appellant has written letter that appeal would not lie in the district Court, junagadh, but it would lie in this High Court. I am constrained to observe that again a mistake has been committed in sending the vakalatnama to the advocate of the District panchayat in District Court instead of High Court. From this affidavit I find that the advocate has also informed the applicant appellant that for filing appeal an amount of Rs. 3,350/- is required towards Court fees. The applicant-appellant has taken two months and 23 days in sending the vakalatanama to the advocate.
From this affidavit I find that the advocate has also informed the applicant appellant that for filing appeal an amount of Rs. 3,350/- is required towards Court fees. The applicant-appellant has taken two months and 23 days in sending the vakalatanama to the advocate. Not only this long period has already been taken for this simple act, but still serious mistake has been committed by sending the papers to the advocate of the District Panchayat at Junagadh. This mistake has been pointed out and to correct the same about one month has been taken by the applicant as it is apparent that this appeal has been filed in this Court on 23rd December, 1993. In this affidavit the deponent has not furnished any cause, much less a sufficient cause for this delay of more than two months and 23 days taken in sending the instruction s to the advocate for filing appeal. Further, no explanation whatsoever has been furnished for taking this one months period in sending the vakalatnama to the advocate of the panchayat at the High Court. ( 6 ) THOUGH on 25th August, 1993 the advocate has informed the applicant-appellant that Rs. 3,350/- is required for Court fees, still on the appeal memo Court fee stamp of rs. 2 has been affixed. The deficit Court fees has been made good on 18th September, 1996. In view of the provisions of Sec. 149 of Code of Civil Procedure the appeal was complete in all respects only on 18th September, 1996. I do not find on the record of this first appeal any application by the applicant for extension of time by Court for making good the deficiency of Court fees, nor I find any order on the record of the appeal under which this Court has extended time for making good the deficiency of court fees. This delay in filing appeal should have been taken till 18th September, 1996 and if we go by this date it is the actual date on which the appeal should have been taken to be properly presented. The delay is thus more than 2 years and six months. The delay of more than two years made in payment of full Court fees has also not been explained. On 25th August, 1993 the advocate of the District Panchayat had informed the applicant-appellant that Rs.
The delay is thus more than 2 years and six months. The delay of more than two years made in payment of full Court fees has also not been explained. On 25th August, 1993 the advocate of the District Panchayat had informed the applicant-appellant that Rs. 3,350/- is required for the Court fees in appeal, and despite that on proper Court fees this appeal has not been filed. Worst part is that it has taken more than two years to make good deficiency of Court on memo of appeal, without furnishing any explanation whatsoever. It is a case where there is culpable, deliberate and apparent negligence on the part of the concerned officers and employees of the applicant-apellant in dealing with this matter. The learned counsel for the applicant appellant urged that this Court may take liberal view in the matter as the District panchayat takes some time to comply with the procedural and administrative requirement before filing of the appeal. In sum and substance learned counsel for the applicant-appellant contended that in the matter of appeals filed by the District Panchayat this Court may take a libveral view and condone the delay caused in filing of the same. ( 7 ) IT is understandable that out of 100 appeals some delay is there in one or two appeals. But where the rule is to file appeal beyond limitation and exception is to file appeal within limitation, liberal view cannot be taken and should not be taken. In almost all the appeals which are being filed on behalf of the State of Gujarat, Union of India and statutory bodies and local authorities, plea is taken in the application filed for condonation of delay caused in filing of the appeal that in case the delay is not condoned then it will result in loss of good case by the applicant. Same ground has conveniently been taken in this application also. It is true that dismissal of appeal on the ground of being barred by limitation, may not cause loss in all cases but in some cases, would cause loss to the applicant.
Same ground has conveniently been taken in this application also. It is true that dismissal of appeal on the ground of being barred by limitation, may not cause loss in all cases but in some cases, would cause loss to the applicant. However, if we go by the broad and wider submissions made by the learned counsel for the appellant, this contention appears to be attractive and tempting also but in case the applicant appellant reminds itself of the Civil Service Conduct Rules and discipline and Appeal Rules, and the doctrine of accountability of erring and defaulting officers and employees, then this sort of contention could not have been advanced; and I am sure that invariably appeals would have been presented in this Court within the prescribed period of limitation. The officers and employees are discharging their duties without any sence of responsibility. It is so too difficult to believe that the officers and employees who are concerned with the filing of appeal are unaware of the provisions of limitation Act, 1983. From the fact that the appeal in this category of matters are not filed within limitation, I find that the officers and employees concerned proceed on the assumption and presumption that whatever may be the delay caused in filing the appeal the Court will take liberal view and condone the delay. They also proceed and work under the belief that there is no accountability whatsoever on their part. In the pretext and garb of long time is required for complying with the procedural formalities no licence or permit can be granted to the officers and employees of the applicant and to take latitude to the extent of dealing with the files and particularly files pertaining to the matter of filing appeals for which there is prescribed period of limitation leisurely, casually and carelessly and negligently. The position in this civil application, by filing of this further affidavit has not improved. ( 8 ) IF we go by the contents of the civil application and further affidavit I find that for considerable periods no explanation worth the name has been furnished by the applicant-appellant.
The position in this civil application, by filing of this further affidavit has not improved. ( 8 ) IF we go by the contents of the civil application and further affidavit I find that for considerable periods no explanation worth the name has been furnished by the applicant-appellant. The delay in filing appeal can be condoned by this Court only where the litigant has set forth the facts supported by affidavit in the application on which he relies, to satisfy the Court that he had sufficient cause for not preferring the appeal within the prescribed period of limitation. So sine qua non for condonation of delay caused in filing of the appeal is of the satisfaction of this Court on the basis of the facts brought on the record that the applicant-appellant had sufficient cause for not preferring the appeal within the prescribed period of limitation. In this case the applicant-appellant has failed to give out any cause, much less a sufficient cause, for this inordinate delay in dealing with the file pertaining to filing of this appeal. Taking into consideration the totality of the facts of this case, I do not find any merits in this civil application. ( 9 ) IN the result this civil application fails and the same is dismissed. ( 10 ) AS a consequence of dismissal of the civil application, the first appeal is dismissed as barred by limitation. .