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2004 DIGILAW 82 (HP)

L. A. C. v. KHUSHI RAM

2004-04-27

A.K.GOEL

body2004
JUDGMENT : Arun Kumar Goel, J. (Oral):- This is an application for condonation of delay in filing this appeal. Admitted facts as they emerge from the record of this case are that Additional District Judge, Mandi, camp at Karsog, decided Reference Case No. 21 of 1996 on 11.5.2001, \n the presence of the counsel for the parties before the said court. 2. At the time of hearing, it was not disputed on behalf of the applicants that two applications for supply of copy were filed. One is dated 6.6.2001, being application No. 1837 of the said date with the copying Agency of the learned District Judge, Mandi. Other application filed was No. 2155 on 28.5.2002. So for first application was concerned, it was made within time. Similarly, second application for supply of certified copy of the impugned award was admittedly filed beyond the period of limitation. 3. At the time of hearing of this application for condonation of delay for filing the appeal, it was also not disputed that application for supply of the copy which is there on file of this case was filed beyond the period of limitation. 4. In the aforesaid background, when a reference is made to the facts detailed in the application, sum and substance of it is that after receipt of copy on 6.10.2001, matter remained pending with different functionaries of the Department when information as well as opinion was being sought for. Finally on 22.4.2002, the case was forwarded to the office of Advocate General. 5. In this context it may be appropriate to notice that the appeal is dated 15.5.2002. Court fee stamp in this case was purchased on 24.4.2002. Affidavits in support of the application under Section 5 of the Limitation Act as well as in support of the application under order 41 Rule 5 read with Section 151 CPC, both are of the same date i.e. 15.5.2002. Admittedly, this appeal was filed on 6.7.2002 in Registry of this Court. 6. Learned Advocate General submitted that delay in filing the appeal needs to be condoned in this case, as according to him, the approach of the officers/officials of the government m its offices is impersonal. Papers move from table to table at a very slow speed. Therefore, delay stands genuinely explained. 6. Learned Advocate General submitted that delay in filing the appeal needs to be condoned in this case, as according to him, the approach of the officers/officials of the government m its offices is impersonal. Papers move from table to table at a very slow speed. Therefore, delay stands genuinely explained. Per him, in the event of delay being not condoned, it is larger public interest that will suffer for inaction/remissness/negligence on the part of some government official (s)/officer (s). He further submitted that the applicant- State did not stand to gain anything by filing a time barred appeal. Further per him, with a view to do substantial justice between the parties, interest of justice also demands that delay be condoned. 7. All these pleas have been controverted by Shri Atul Jhighan, leaned Counsel/Court Guardian. Per him, applying liberally the tests laid down in favour of the applicants for condoning the delay and at the same time taking a very liberal view under Section 5 of the Limitation Act, still no cause, muchless sufficient cause is shown from the facts detailed in the application. He has thus prayed for rejection of this application. 8. Ordinarily, submissions of Mr. Chandel should have found favour with the Court and resultantly delay condoned. Reason being that a party ordinarily is not to be dislodged on a technical plea like limitation. In the present case after conclusions of delay, all that applicants would get is their case being heard on merits and nothing more. 9. How to proceed further on the merits of a particular case, will again depend upon the submissions made at the time of hearing as well as after examination of the record. However, party must firstly specify enough and adequate facts enabling the Court to condone the delay. Relief in an application under Section 5 of the Limitation Act is equitable and discretionary, therefore, litigant like applicants must come to the court with clean hands. Applications should be bonafide and should not be aimed at gaining advantage by misstatement and/or on account of withholding of material facts. Relief in an application under Section 5 of the Limitation Act is equitable and discretionary, therefore, litigant like applicants must come to the court with clean hands. Applications should be bonafide and should not be aimed at gaining advantage by misstatement and/or on account of withholding of material facts. I may reiterate that applying all the tests for liberal consideration of an application of Section 5 of Limitation Act to the facts of present case, starting from the decision of Supreme Court in Collector, Land Acquisition, Anantanag and another v. Mst Katiji and others (AIR 1987 SC 1353) and subsequent decisions to the same effect, for the reasons to be recorded hereinafter, applicants are not entitled to any relief whatsoever in this application. 10. As already observed, appeal alongwith application for condonation of delay in filing the same has been admittedly filed on the basis of certified copy that was applied for by the applicants beyond the period of limitation. And a reference to the facts detailed in this application clearly suggests that an attempt is made to show as to how after receipt of the certified copy on the basis of application filed on 6.6.2001, the case was dealt with by the different functionaries in the offices of the Government at different levels. 11. Another fact that needs to be noted here is that there is no mention muchless murmur regarding the copy on the basis of which appeal alongwith present application has been filed. This omission could not be explained by the learned Advocate General. However, when faced with this situation, he urged that he may be allowed to file supplementary affidavit to support the case of his clients. This prayer cannot be allowed. Reason being that after filing of the matter on 6.7.2002 till today, how it was being examined by the applicants, learned Advocate General was not in a position to explain. In these circumstances, I have no hesitation in coming to the conclusion that the applicants wanted to take advantage with a view to get a favourable order on this application, both by withholding the material facts, as well as by not stating the facts correctly. 12. In these circumstances, I have no hesitation in coming to the conclusion that the applicants wanted to take advantage with a view to get a favourable order on this application, both by withholding the material facts, as well as by not stating the facts correctly. 12. Another reason to reject this application is that appeal was sent to the office of learned Advocate General on 22.4.2002, and court fee stamps having been purchased on 24.4.2002, as is evident from the endorsement made on such stamps, appeal with two applications was ready for all purposes on 15.5.2002. Why it was filed on 6.7.2002? No explanation could be given by learned Advocate General in this behalf. 13. No doubt, application gives narration of facts as to how the matter was dealt with after receipt of first copy (as noted above), at different levels. They have only to explain how delay occurred after limitation was over. Again in this behalf when a reference is made to the application, how the limitation aspect was dealt with while processing the case for filing/non filing of the appeal against the impugned award, there is nothing said in the application. And, no justifiable cause could be shown by the learned Advocate General for this omission. Limitation has to be kept \n view side by side by litigants like petitioners while processing the matter like the present one. 14. This is not the first case that has come to the notice of this Court wherein the approach of the official (s)/officer (s) of the State Government is not only cursory but is perfunctory too. In some of the cases, directions have been given to the secretary of the Department concerned to examine the matter and then fix responsibility after affording opportunity to the erring officer (s) official (s) and recover the financial loss caused to the State from such officer/official (s). 15. No other point is urged. 16. In view of the aforesaid discussion, no cause, muchless sufficient cause is made out for condonation of delay in filing the appeal. Accordingly, this application is dismissed. At the same time, it is ordered that Chief Secretary or Additional Chief Secretary will personally hold inquiry into the matter and fix responsibility on the officer (s)/officials (s) due to whose inaction, negligence and/or remissness the appeal could not be filed in time. Accordingly, this application is dismissed. At the same time, it is ordered that Chief Secretary or Additional Chief Secretary will personally hold inquiry into the matter and fix responsibility on the officer (s)/officials (s) due to whose inaction, negligence and/or remissness the appeal could not be filed in time. After needful having been done by fixing the responsibility, then after giving opportunity of being heard, recovery of the amount involved in this appeal shall be effected from such erring officer (s)/officials (s). Needful will be done by 30.9.2004 and affidavit will be filed by the Inquiring Officer reporting compliance with this order. Direction regarding time frame is premptory to be carried out by the concerned officer holding inquiry, unless the same is extended by the Court. An urgent copy will be made available to the office of learned Advocate General during the course of this week and copy will be sent directly to the Chief Secretary to the Government of HP. for proceeding further in the matter as directed hereinabove. Original application summoned from the copying Agency of District Judge, Mandi, in this case in terms of the order dated 19.4.2004, shall be returned to him after retaining its Photostat copy on record of this case.