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2001 DIGILAW 328 (HP)

State Of Himachal Pradesh v. Satya Pal

2001-11-13

ARUN KUMAR GOEL

body2001
JUDGMENT : Arun Kumar Goel, J.- State has filed CMP (M) No. 20 of 2001 for condonation of delay in filing the appeal against the award passed by the Addl. District Judge, Shimla on 23.3.2000 which was amended vide order dated 3.6.2000. Admittedly, the appeal is barred by time. 2. At the time of hearing of the CMP (M), it was not disputed on behalf of the parties that the Award was initially passed by the trial Court on 23.3.2000, in Land Reference Case No. 6-S/4 of 92. And on the application of respondents under Order 47 Rules 1 and 2 read with Sections 151 and 152 of the Civil Procedure Code it was modified on 3.6.2000. Learned Judge in his wisdom has corrected the original award dated 23.3.2000. As per averments made in the application under Section 5 of the Limitation Act, its rejoinder, supplementary affidavit of Engineer, S.K. Singal dated 17.8.2001 what transpired is as under : 3. Initially award was made by the learned Addl. District Judge, Shimla, on 23.3.2000. Respondents preferred an application under Order 47 rules 1 and 2 read with Section 151 and 152 of the Civil Procedure Code. It was allowed and corrections were carried out in the original Award dated 23.3.2000. Copy of the Award dated 23.3.2000 was applied for by him on 26.6.2000, and of order dated 3.6.2000 on 7.9.2000. Copy was delivered on 20.7.2000 whereas the copy of latter order was delivered on 15.9.2000. Thus it is clear that copies of both the orders were applied for after expiry of the period of limitation. 4. Fact remains that the appeal along with stay application and present application was filed in this Court on 9.1.2001 when amount terms of order dated 3.6.2000 was also deposited. 5. Prior to it copy was received by the Executive Engineer from Land Acquisition Collector on 4.8.2000. Whereas copy of order dated 3.6.2000 was received by the Executive Engineer on 27.9.2000. This was sent to Chief Engineer on 9.10.2000. He in turn forwarded the same to the Engineer-in-Chief on 13.10.2000 who forwarded it to Financial Commissioner-cum-Secretary (PWD) on 17.10.2000. Matter was forwarded to Secretary (Law) on 21.10.2000 for opinion and was received back on 6.11.2000 by the Financial Commissioner. On 9.11.2000, the Financial Commissioner conveyed the decision to the Engineer-in-Chief who further passed it on to the Chief Engineer on 13.11.2000. Matter was forwarded to Secretary (Law) on 21.10.2000 for opinion and was received back on 6.11.2000 by the Financial Commissioner. On 9.11.2000, the Financial Commissioner conveyed the decision to the Engineer-in-Chief who further passed it on to the Chief Engineer on 13.11.2000. Finally on 18.11.2000 Chief Engineer conveyed the Government decision about this appeal to the Executive Engineer. Then appeal was drafted on 25.11.2000 and sent to the Chief Engineer on 25.11.2000, who in turn forwarded it to the Engineer-in-Chief on 30.11.2000. This was received in the office of Advocate General on 2.12.2000. 6. It was conveyed by the Advocate General office on 8.12.2000 asking the department to arrange for money. In these circumstances, Executive Engineer sought budgetary provision from the Chief Engineer on 8.12.2000 which was allotted on 22.12.2000. A cheque was returned by the Bank on 27.12.2000. Thereafter a banker cheque was prepared on 3.1.2001 and case was again sent to Advocate General on 4.1.2001 and finally appeal was filed on 9.1.2001 and money deposited in this Court. 7. In this background, State has prayed for condoning the delay as it was prevented by sufficient cause from filing the same within time. It was also submitted that looking to the larger public interest delay needs to be condoned otherwise it is likely to result in failure of justice because of fault of some officials here and there. Whatever delay occurred it was due to procedures to be followed in the Government offices. 8. On the other hand, learned Senior counsel appearing for the respondent has contested the claim made on behalf of the State. As according to him even if what is alleged in the pleadings filed by the State is accepted for the sake of argument, without conceding still no cause much less a sufficient cause is made out for condonation of delay. He has submitted that State has no special privilege so as to throw to winds the law of limitation by treating it as nonest. Valuable right has accrued to his client as such, he has prayed for dismissal of the application in question and consequently consigning the appeal to the records. 9. He has submitted that State has no special privilege so as to throw to winds the law of limitation by treating it as nonest. Valuable right has accrued to his client as such, he has prayed for dismissal of the application in question and consequently consigning the appeal to the records. 9. So far the approach of the Court while dealing with an application under Section 5 of the Limitation Act is concerned, it does not have to be pedantic so as to insist on explaining each day's delay, and on failure to explain it, to presume that it was intentional. Expression sufficient cause should generally be liberally construed so that it advances the cause of substantial justice. When a party claims the benefit of Section 5 of Limitation Act, it has also to prima facie make out a case that no negligence or inaction can be attributed to it. Once this conclusion is arrived at then such a party is entitled to the benefit of the provision of this Section of the Limitation Act. 10. We may also observe in this behalf that when delay occurs there is no presumption in law that it is either intentional or wilful. Similarly each day's delay is not required to be explained. Such approach if insisted upon, is bound to result in failure of justice. Reason being that Courts are respected for doing justice between the parties and not throwing out case of a party on a technical plea like limitation. When grant of substantial justice is pitted against a technical plea like limitation, latter would give way to the former. We are further of the view that larger public interest and public good has also to be kept in view while considering an application in the matter relating to condonation of delay, as in the present case. Otherwise for inaction either intentional or bona fide or otherwise of some one in the office of the Government, litigation as in the present case would become time barred and because of non-explaining of each day's delay case has to be thrown out. This can never be the intention much less purpose of the provisions of law. 11. The matter relating to interpretation of Section 5 of the Limitation Act had been attending attention of the Apex Court from time to time. 12. This can never be the intention much less purpose of the provisions of law. 11. The matter relating to interpretation of Section 5 of the Limitation Act had been attending attention of the Apex Court from time to time. 12. In Ramlal and Others v. Rewa Coalfields Ltd., AIR 1962 SC 361 , Supreme Court observed as under : "In construing Section 5 is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal." 13. In State of West Bengal vs. The Administrator, Howrah Municipality and Others etc., AIR 1972 SC 749 , Supreme Court after placing reliance on the decision of Ram Lal (supra), it was held as under : "30. From the above observation it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party." 14. In G. Ramegowda Major and Others v. Special Land Acquisition Officer, Bangalore and Basavalingappa v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142 , while dealing with a case of the negligence of a counsel as also the case wherein delay had been condoned by the High Court, Supreme Court dismissed the appeal and observed as under : "There is no general principle saving the party from all mistakes of its counsel. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. The law of limitation is, no doubt, the same for a private citizen as for Government authorities. The law of limitation is, no doubt, the same for a private citizen as for Government authorities. Government, like any other litigant, must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purpose with it. Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it must be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, those factors which are peculiar to and characteristic of the function of the government. Implicit in the very nature of governmental function is procedural delay incidental to the decision-making process. Due recognition of these limitations on governmental functioning, of course, within a reasonable limit is necessary. It would be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters." 15. In State of Haryana v. Chandramani and Others, 1996 (3) SCC 132 , three Judges Bench of Supreme Court after considering its number of earlier decisions held as under : "11. It is notorious and common knowledge that delay in more than 60 percent of the cases filed in this Court be it by private party or the State, are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State os less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay or procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the case laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether dases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application once he is a person legally injured while State is a impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay." 16. Thus while setting aside the decision of the High Court delay was condoned. 17. In N. Balakrishnan v. M. Krishnamurthy, 1998 (7) SCC 123 , Supreme Court held as under : "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Thus while setting aside the decision of the High Court delay was condoned. 17. In N. Balakrishnan v. M. Krishnamurthy, 1998 (7) SCC 123 , Supreme Court held as under : "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a difficult matter when the first Court refuses to condone the delay. In such cases the superior Court would be free to consider the case shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. 10. The reason for such different stance is thus : The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit during efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit during efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim intersi reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see the parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the delay. The Court should forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for the loss." 18. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for the loss." 18. In Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma, AIR 1996 Supreme Court 2850, while allowing the appeal filed on behalf of the State of Kerala, it was held as under : "2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skillful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedantic. Under those circumstances, the Subordinate Judge had rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned." 19. In State of U.P. v. Sunder Singh and Others, JUT 1999 (10) SC 507, while condoning the delay it was held as under : "1. Delay is apparently very inordinate. Even so we are disinclined to allow public justice to suffer in the case on account of laches of the officers of the State who are responsible for the delay. In State of U.P. v. Sunder Singh and Others, JUT 1999 (10) SC 507, while condoning the delay it was held as under : "1. Delay is apparently very inordinate. Even so we are disinclined to allow public justice to suffer in the case on account of laches of the officers of the State who are responsible for the delay. An affidavit has been filed by the Home Secretary explaining the long delay in which he has made a reference to Shri Anand Banerjee who was the Additional Government Advocate of the High Court of Allahabad (Lucknow Bench) as the officer responsible for the long delay. Prima facie, we felt that the aforesaid Government Advocate has caused this inordinate delay by not filing application for certified copy of the judgment at the required time. Hence, we issued a notice to the said Anand Banerjee to show cause why the cost which we may impose on the State shall not be realised from him. Now, an affidavit has been filed by the aforesaid Anand Banerjee in answer to the said notice and we perused it. There is virtually no explanation for the delay caused at his instance. On the contrary, he has admitted that it was on account of his lapse that the long delay was caused. Of course, he made an attempt to justify himself saying that on account of a bona fide mistake he did not come to know that judgment has been delivered by the High Court. Such an excuse is no explanation to absolve him from the responsibility. Law Officers engaged by the State Government cannot adopt such a careless attitude in matters of public importance. It would be sad delay for the law enforcement machinery if such law officers are permitted to go scot-free without any liability after creating a situation like this. 2. We, therefore, condone the delay in filing this SLP on terms that the petitioner State shall ay a sum of Rs. 5000/- to the counsel for the Respondent. We direct that the amount shall be deposited within four weeks. We direct the petitioner State to realise the said amount from Shri Anand Banerjee, Additional Government Advocate, High Court of Allahabad (Lucknow Bench) without further delay." 20. 5000/- to the counsel for the Respondent. We direct that the amount shall be deposited within four weeks. We direct the petitioner State to realise the said amount from Shri Anand Banerjee, Additional Government Advocate, High Court of Allahabad (Lucknow Bench) without further delay." 20. In P.K. Ramachanran v. State of Kerala and Another, AIR 1988 Supreme Court 2276 order of the High Court condoning the delay on the plea that because of the office of the Advocate General was fed up with so many administrative matters pending consideration was not accepted to be sufficient cause and therefore, it was set aside and application for condonation of delay was ordered to be rejected. It was also observed that Law of Limitation has to be applied with all its rigours prescribed by statute and time cannot be extended on equitable grounds. It is not the situation in the present case as would be seen from the facts stated hereinafter. Therefore it does not support the case for dismissal of the application under Section 5 of the Limitation Act filed by the State in the present case. 21. In Lachhman Dass Arora v. Ganesh Lal and Others, 1999 (8) SCC 532 , a three judges bench held that Law of Limitation had to be applied with its rigour when the statute so prescribes. Courts cannot extend the period of limitation in equitable grounds, particularly in the matter of filing election petitions. Thus while upholding the order of dismissal of the election petition being time barred, appeal of the election petitioner was dismissed. In this behalf we may observe that the election petitions are in nature of original proceedings akin to a suit and Section 5 of the Limitation Act has no applicability to such proceedings. In addition to the fact that provisions of the Representation of the People Act, 1951 have to be strictly construed so far those relate to filing of election petitions. Ratio laid down in this case has no applicability to the facts of the present case. 22. In Sri Veera Hanuman Rice and Flour Mill and Another v. State Bank of India, Ramchandrapuram, A.P., 2000 (5) SCC 248 , Supreme Court allowed the appeal and set aside the order of condonation of delay in filing the appeal while condoning the delay of 714 days by the High Court. 22. In Sri Veera Hanuman Rice and Flour Mill and Another v. State Bank of India, Ramchandrapuram, A.P., 2000 (5) SCC 248 , Supreme Court allowed the appeal and set aside the order of condonation of delay in filing the appeal while condoning the delay of 714 days by the High Court. Plea in this case urged on behalf of State Bank of India was that its counsel was unwell, therefore, it resulted in delay in filing the appeal. Thus it was pleaded as a sufficient cause for allowing application under Section 5 of the Limitation Act. This plea was controverted on behalf of the private party who pointed out that the counsel of the Bank who was stated to be unwell was regularly appearing in the Court in connection with other cases. Since this plea had not been considered, therefore the case was remanded back. This decision has no applicability to the facts and circumstances of the present case. 23. From the narration of facts detailed regarding as to how the matter was dealt with at different levels at the Government, it cannot be said that there was any laxity or inaction or want of bona fide on the part of the State in prosecuting the matter. Record suggests the official did move after receipt of copies on different dates. In case all the concerned dealing hands particularly law officers had shown more concern, then situation would not have arisen. On account of negligence of a lawyer no litigant would suffer (See Rafiq and Another v. Munshi Lal and Another, AIR 1981 Supreme Court 1400). Thereafter in a number of subsequent decisions, this view has been constantly followed by the Supreme Court. 24. As already observed if someone working in a Government office is interested in a litigant, and with a view to subserve his interest rather than that of the Government allows the matter to get time barred in the office without letting the higher ups know about the outcome and prompt action required to be taken; and Court also ignoring this vital aspect refuses to condone the delay, such an approach if followed, will not only result in the failure of justice, but will also be putting premium on unfair and dishonest act on the part of such an official. Approach of the Court has to be just and reasonable, as also for doing justice between the parties. In case of Government some leverage needs to be given while considering a matter concerning condonation of delay. Reason being that approach in the Government office is impersonal. File has to move from table to table is an additional factor of causing delay. Had someone bothered immediately after passing of the initial award on 23.3.2000 and thereafter when the order dated 3.6.2000 was passed this problem would not have arisen. But, for impersonal and careless approach on the part of Government officials the cause of justice cannot be defeated. 25. Examining the present case in the light of the facts detailed hereinabove as well as on the basis of the decision of the Supreme Court supra, we feel that delay in filing the appeal was neither wilful nor intentional and it also cannot be said that there is any apparent lack of bona fide and/or there was any inaction on the part of the authorities concerned in filing the present appeal, as such case is made out for condonation of delay. 26. No other point is urged. 27. In view of the aforesaid discussion, this application is allowed and delay in filing the appeal is hereby condoned subject to payment of Rs. 5,000/- as costs to be paid by the Government within four weeks from today. Appeal will now be registered.