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2009 DIGILAW 1148 (PAT)

State of Bihar v. Uma Shankar Pathak

2009-08-25

body2009
ORDER This Civil Revision is being disposed of at this stage with the consent of the parties. 2. The defendants-appellants-petitioners are aggrieved by the order dated 1.2.2008 passed in Title Appeal No. 18 of 2007 by the District Judge, West Champaran, Bettiah, whereby the aforesaid title appeal has been dismissed on account of being time barred. 3. Bereft of unnecessary details, facts of the case, in short which would be necessary for deciding the controversy, are portrayed as follows:- 4. The plaintiff-respondent-opposite party filed Title Suite No. 59 of 1992 for declaration that the order of transfer dated 9.6.1992 was illegal, void and without jurisdiction with a further prayer for grant of permanent injunction restraining the defendants-State authorities from implementing the aforesaid order of transfer. The plaintiff-respondent-opposite party, who was Medical Officer in the Health Department, Government of Bihar, was transferred from Bairia, District of West Champarant to Sahebganj within the Division of Santhal Pargana, which was challenged by filing the aforesaid title suit. The defendants-petitioners (State authorities) contesting the suit by filing written statement. In the suit the plaintiff filed a petition for grant of ad interim injunction, upon which an order for maintaining status quo was granted initially. However, ultimately, it is the case of the petitioners that the plaintiff was ultimately relieved on 1.10.1997. Subsequently, a prayer for grant of injunction was again made by the plaintiff, which was refused by the trial court. However, the trial court directed subsequently for payment of advance T.A. etc. to the plaintiff, which was challenged by the State of Bihar in Civil Revision No. 1438 of 1998 before this Court and that was allowed by order dated 31.1.2000. The Miscellaneous Judicial Case, filed by the plaintiff-opposite party for recall of the said order, was also dismissed on 23.3.2000. The plaintiff-opposite party moved before the Apex Court against the aforesaid order and by order dated 8.1.2001 the Supreme Court of India remitted the matter back to this Court for fresh consideration. However, the aforesaid civil revision was ultimately held to have become infructuous on 31.3.2004 on account of the fact that the title suit concerned had already been decreed. The defendants-appellants-petitioners preferred First Appeal No. 227 of 2005 before this Court on 29.7.2005 along with an. application with a prayer to condone the delay in filing of the appeal. However, the aforesaid civil revision was ultimately held to have become infructuous on 31.3.2004 on account of the fact that the title suit concerned had already been decreed. The defendants-appellants-petitioners preferred First Appeal No. 227 of 2005 before this Court on 29.7.2005 along with an. application with a prayer to condone the delay in filing of the appeal. However, this Court while hearing a group of first appeals along with the appeal in Ram Sagar Kewar and others Vs. Shivalak Kewat and others, reported in 2005(3) Patna Law Journal Reports, 360, had held that pursuant to an amendment the pecuniary jurisdiction of the District Judge has been enhanced up to rupees two lacs to hear appeals and in view of the above, this Court directed that the memorandum of appeals filed after 19.2.2005 having a suit valuation less than rupees two lacs be returned to the appellants or their counsel. It was further directed that if the memorandum of appeal so returned is again filed within 14 days thereafter before the District Judge concerned in such cases the delay was directed to be condoned. 5. Heard Shri Lalit Kishore learned Additional Advocate General No. III for the petitioners and Shri Shashi Shekhar Dwivedi, learned senior Advocate appearing on behalf of the opposite party. 6. It has been contended on behalf of the petitioners that in view of the aforesaid fact that the first appeal was presented before the District Judge concerned within 14 days of the return of the memorandum of appeal, the court below has stated in paragraph 6 of the impugned order that the period spent during the pendency of the appeal in the High Court will be taken to have been explained by the appellant. The appellate court has rejected the prayer for condoning the delay chiefly on two grounds. First ground is that the appellants-petitioners had filed requisition for obtaining the certified copy of the judgment and decree after a lapse of 12 days from the date of expiry of the period of limitation for filing such appeal and the same does not stand explained. First ground is that the appellants-petitioners had filed requisition for obtaining the certified copy of the judgment and decree after a lapse of 12 days from the date of expiry of the period of limitation for filing such appeal and the same does not stand explained. Learned counsel for the petitioners drew attention of this Court towards paragraph 6 of the impugned order, wherein it is stated by the court concerned that the decree was sealed and signed on 11.2.2004, but the application to obtain the certified copy thereof on 23.3.2004, i.e. after expiry of more than one month of the period for filing the appeal prescribed under Law of Limitation. Learned counsel for the petitioners submitted that the aforesaid finding is erroneous, as the appeal was filed initially before this Court and for filing such first appeal before this Court against a judgment and decree of the court below the limitation Act is 90 days and not 30 days as has been considered by it. The second ground taken by the court below is that it is manifest from I.A. No. 3773 of 2005, filed for condoning the delay (annexure 2 to this revision application) that the Commissioner-cum-Secretary, Department of Health, Government of Bihar, had given direction to file an appeal before the appropriate court, but that direction was not followed for more than a year which remained unexplained in this regard learned counsel for the petitioners drew attention of this Court towards I.A. No. 3773 of 2005 itself, which is contained in annexure 2 to this civil revision application. It has been submitted that from paragraph 4 onwards stepwise explanation of delay has been furnished and it has been clearly stated that the Civil Surgeon concerned was directed by the Commissioner-cum-secretary, Department of Health. Government of Bihar by letter dated 25.6.2004 to file appeal before the appropriate court. However, the Civil Surgeon, Bettiah, on one pretext or other deferred the filing. The Government took a serious view of the matter and called for an explanation from the then Civil Surgeon for flouting the direction of the State Government. Explanation was given by him. However, again an explanation was sought for from him as to why a departmental proceeding should not be initiated against him for non-filing of the appeal. In view of the recommendation of the Civil Surgeon concerned Rs. Explanation was given by him. However, again an explanation was sought for from him as to why a departmental proceeding should not be initiated against him for non-filing of the appeal. In view of the recommendation of the Civil Surgeon concerned Rs. 1,38,056/- was already paid to the plaintiff in the execution court concerned but the plaintiff made a further claim for Rs. 14,75,000/- in the concerned execution .court. Thereafter, on a decision taken to file an appeal immediately, the file was sent to the learned Advocate General on 11.7.2005. However, it was noticed that the certified copy of the judgment and decree was not available in the file and on receipt of the same the first appeal was filed before this Court on 29.7.2005. 7. Learned counsel for the petitioners submitted that the suit was filed challenging the order of transfer and there was no relief sought for payment of back-wages of salary and arrears. No such issue was also framed by the trial court in this regard. Therefore, the trial court could not have passed a decree for the arrears of salary etc. The petitioners have relied for aforesaid proposition upon a decision of the Supreme Court in Ishar Singh Vs. National Fertilizers and another, reported in 1991 Supplementary (2) Supreme Court Cases, 649, wherein it has been held that in a suit filed for correction of date of birth and injunction against impending superannuation, the court concerned could not have granted relief with regard to back-wages. On point of condoning delay in filing appeals due to the decision to be taken by different officers and agencies of the Government, the petitioners have placed reliance upon a decision of the Apex Court in State of Nagaland Vs. Lipok AO and others, reported in (2005)3 Supreme Courts Cases, 752, wherein it has also been held that in the cases of delay the approach of the court should be to decide the matters on merit unless the case is hopelessly without merit. Learned counsel for the petitioners also placed reliance upon a decision rendered by a Division Bench of this Court in The State of Bihar and Others Vs. Sri S.K. Verma, reported in 2007(1) Patna Law Journal Reports, 788, wherein it has been held that the State is an impersonal machinery and at times delay occurs and which has to be viewed generally, liberally and dispassionately. 8. Sri S.K. Verma, reported in 2007(1) Patna Law Journal Reports, 788, wherein it has been held that the State is an impersonal machinery and at times delay occurs and which has to be viewed generally, liberally and dispassionately. 8. In view of the above, submission on behalf of the petitioners is that the findings of the appellate court, as discussed above are wholly erroneous and are liable to be set aside. 9. Mr. Shashi Shekhar Dwivedi learned senior counsel for the opposite party, submitted that it would be apparent from the application filed for condoning the delay itself that there have been laches on part of the petitioners in filing the first appeal. It is submitted that the petitioners under the garb of this civil revision application are trying to challenge the findings recorded in the judgment and decree of the original court, which cannot be allowed to be done. It was further contended that there has been inordinate delay by the learned counsel for the State in receiving the memorandum of appeal itself. In fact, the direction given by this Court in Ram Sagar Kewat and Others (supra) was that the office had to return the memorandum of appeals to the appellants or their counsel at the earliest, preferably within two weeks from the date of aforesaid order for presenting the same before the court of the District Judge concerned. However, even after repeated reminders issued by the office of the High Court, learned counsel for the appellants took back the memorandum of appeal after more than two years after the decision rendered in Ram Sagar Kewat (supra). 10. learned counsel for the opposite party had placed reliance upon a decision of the Supreme Court in Bihar State Housing Board and Others Vs. Ban Bihari Mahto and Others, reported in 1989 Patna law Journal Reports (Supreme Court), 5, to show that the delay on account of correspondence and processing and routing through Sections of the Department is not sufficient cause to condone the delay. Reliance is also placed upon a decision of the Supreme Court in P.K. Ramchandran Vs. State of Kerala and Another, reported in 1997(7) Supreme Court Cases, 556 to demonstrate that the equity cannot be the basis for extending the period of limitation and the explanation of delay has to be reasonable and satisfactory making the same liable to be condoned. Mr. State of Kerala and Another, reported in 1997(7) Supreme Court Cases, 556 to demonstrate that the equity cannot be the basis for extending the period of limitation and the explanation of delay has to be reasonable and satisfactory making the same liable to be condoned. Mr. Dwivedi next placed reliance upon the decision of the Supreme Court in Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project & Anr., reported in 2009(1) Bihar Bar Council Journal IV-248 (Supreme Court) to show that incorrect statement made in an application seeking condonation of delay was sufficient to reject the same. 11. So far the first ground, i.e., regarding delay of 12 days in filing an application to obtain the certified copy of the judgment and decree is concerned, the appellate court had proceeded in deciding this question on the pretext that for the appeal to be preferred before the District Judge, a period of limitation as provided under section 116(b) of the Limitation Act is 30 days. But the fact of this case is that First Appeal No.227 of 2005 was initially filed before this Court, for which the limitation period as per the provision under Article 116(a) of the Limitation Act is 90 days from the date of passing of the judgment and decree. Later on, it was held in Ram Sagar Kewat (supra) that for the appeals filed on after 19.2.2005, the memorandum of appeal was to be returned to the appellant to be filed before the District Judge concerned as per the amendment in the existing law enhancing the pecuniary jurisdiction of the District Judges for entertaining such appeals. Therefore, in my opinion since initially the appellants were intending to file an appeal before this Court. which was eventually done and not dismissed on the ground of pecuniary jurisdiction, rather the memorandum of appeal was returned to be refiled before the concerned District Judge, the benefit should have been given to the appellant and on the aforesaid ground the petition for condoning the delay ought not have been rejected by the court below. 12. So far the second ground, i.e., question of explaining the delay of more than a year in filing of appeal is concerned, it would be apt to quote the relevant passage from the decision of the Supreme Court in State of Nagaland (supra), which is as under:- "15. 12. So far the second ground, i.e., question of explaining the delay of more than a year in filing of appeal is concerned, it would be apt to quote the relevant passage from the decision of the Supreme Court in State of Nagaland (supra), which is as under:- "15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of 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 a 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 cause 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 cases require adjustment and should authorize 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 since he is a person legally injured while the State is an impersonal machinery working through its officers or servants." 13. 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 since he is a person legally injured while the State is an impersonal machinery working through its officers or servants." 13. As would be manifest from the above, the view of the Apex Court is that the State cannot be put on the same footing as an individual, as for filing the cases various steps are to be taken at different level by the State machinery and, thus more liberal attitude should be taken towards condoning the delay. The Apex Court in its aforesaid decision considered several earlier cases including the decisions rendered by it in G. Ramegowda. Major and Others Vs. Special land Acquisition Officer, Bangalore reported in ((1988)2 Supreme Court cases, 142) and N. Balakrishnan Vs. M. Krishnamurthy, reported in ((1988)7 Supreme Court Cases, 123). It would also be pertinent here to quote the relevant passage from the decision of the Division Bench of this court rendered in the State of Bihar and others (supra) following the decision of the Supreme Court in the case of State of Nagaland (supra), as under:- "6. It is also, settled proposition of law that in case of impersonal machinery at times delay occurs and it has to be viewed, generally, liberally and dispassionately. At times, delay occurs on account of inter and intra departmental procedure. If sufficient cause is shown with the help of the provision of Section 5 of the Act the extension of time for filing the proposed appeal can be granted at the discretion of the court. The expression sufficient cause in Section 5 has to be viewed and evaluated with a pragmatic approach, in a justice oriented approach, rather than, the technical detection of sufficient cause for explaining every day's delay. In Government matters certain amount of latitude is, also, permissible in view of certain proposition of law. The public interest suffers if appeals are lost because of such default. The view with which we are inclined to at this stage is very much reinforced by the latest decision of the Apex Court rendered in the case of State of Nagaland Vs. Lipok Ao and Others, (2005)3 SCC 752 . The public interest suffers if appeals are lost because of such default. The view with which we are inclined to at this stage is very much reinforced by the latest decision of the Apex Court rendered in the case of State of Nagaland Vs. Lipok Ao and Others, (2005)3 SCC 752 . The principles for pragmatic approach and, more so, in Government matters have been lucidly articulated and expounded. We are, fully, supported by the said decision in the light of the facts of the present case." 14. In Union of India and Others (supra) the Supreme Court was of the opinion that no attempt was made to explain the delay and also regarding the fact as to what legal problems arose in filing the Special Leave petition arose. Thus, finding the ground insufficient the delay was refused to be condoned. Similarly, in P.K. Ramchandran (supra) also the Apex Court found that no explanation muchless reasonable or satisfactory explanation was offered by the respondent State for condonation of the delay. 15. However, in the present case, in my considered opinion, the ratio decided in G. Ramegowda, Major and others (supra) and State of Nagaland (supra), would be applicable, as explanation has been given by the State in its petition and if an officer of the State (here the Civil Surgeon concerned) flouted the direction and delayed the filing of the appeal, for which explanation, as to why departmental proceeding should not be initiated against him, was also sought, then the State Authority as a whole should not be held responsible. In my opinion, it was a case, in which the delay should have been condoned by the appellate court. 16. Lastly, it was submitted on behalf of the opposite party that the delay in receiving back the memorandum of appeal was on part of the learned counsel for the appellants, as has been discussed above. n view of the fact that the same has not been explained by the petitioners, according to the opposite party, this revision application is fit to be rejected. It w is submitted that the fact that there had been delay in receiving back the memorandum of appeal does not stand even stated in this revision. Thus, it was urged that the civil revision application suffered from the vice of suppression of fact and was liable to be dismissed on that account also. It w is submitted that the fact that there had been delay in receiving back the memorandum of appeal does not stand even stated in this revision. Thus, it was urged that the civil revision application suffered from the vice of suppression of fact and was liable to be dismissed on that account also. Learned counsel has also referred to a decision of, the Supreme Court in Pundlik Jalam Patil (D) by Lrs. (supra) to demonstrate that if incorrect statement has been made in the application for condoning the delay that itself is sufficient to reject the same without further inquiry. 17. It is true that learned counsel for the petitioners had received back the memorandum of appeal after more than two years, but it had been submitted that the same could not have been incorporated in the interlocutory application concerned, as the same was filed before this Court at the time of filing of the first appeal concerned itself. Along with the memorandum of appeal the interlocutory application concerned was also given back to the appellants and was filed before the concerned District Judge. The District Judge concerned, in the impugned order, has stated that since the appeal has been resubmitted within 14 days from the date of receipt of the memorandum of appeal from the office of the Honoble High Court, in terms of the decision rendered in Ram Sagar Kewat (supra) the period spent during the pendency of the appeal in the High Court stands explained. It had been stated by learned counsel appearing on behalf of the petitioners that this issue was neither raised by the opposite party before the appellate court nor had the aforesaid finding of the court below been challenged by him. That apart, the mistake, obviously was on part of the learned counsel, who was representing the State of Bihar at that point of time and for that the petitioners could not be held to be responsible. It had also been stated that the finding of the court below rejecting the appeal on account of delay only to the extent that had occurred in filing of the first appeal before this Court, is under challenge in this revision, as the petition seeking condonation of delay had been dismissed on that account only. 18. It had also been stated that the finding of the court below rejecting the appeal on account of delay only to the extent that had occurred in filing of the first appeal before this Court, is under challenge in this revision, as the petition seeking condonation of delay had been dismissed on that account only. 18. In view of the above, I hold that though there had been laches on part of the learned counsel appearing for the State at that particular point of time, who had not received back the memorandum of appeal despite reminders there is nothing on record to show that the said omission was intentional on part of the petitioners. Thus, it would not be proper to dismiss the revision on that account. 19. In view of the discussions aforesaid, I hold that the impugned order dated 01.02.2008 passed by the court below suffers from error and, thus, is set aside. The delay in filing Title Appeal No. 18 of 2007 is condoned and the appellate court is directed to dispose of the appeal on its own merit after hearing the parties preferably within six months from the date of receipt/production of a copy of this order. However, since there has been much delay in disposal of the appeal concerned due to delay on part of the petitioners, this order would be subject to payment of cost of Rs.10,000/- (ten thousand) by the petitioners to the opposite party.