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2011 DIGILAW 1237 (HP)

State of H. P. v. Hira Singh

2011-03-11

DEV DARSHAN SUD

body2011
JUDGMENT Justice Dev Darshan Sud (Oral): This application has been filed by the appellants herein namely State of H.P., Conservator of Forests, Nahan, Divisional Forest Officer, Renuka Ji Forest Division and Range Officer, Kofta Range under the provisions of Section 5 of the Limitation Act (hereinafter called as the Act), seeking condonation of delay in instituting the appeal against the award passed by the Commissioner Workmen’s Compensation, Sub Division, Paonta Sahib, District Sirmour, H.P., awarding sum of Rs. 1,40,890/-alongwith interest at the rate of 12% per annum, which comes to Rs. 1,39,932/- to the claimants for the death of Ghasi Ram who was discharging his duties with the respondents. While awarding interest, the Commissioner held that there is a delay of more than 8 years, 3 months and 11 days in paying the compensation and, therefore, the claimants were entitled to the interest on the principal amount. 2. The appeal is barred by 261 days. In the application, it is pleaded that the award was passed on 10.3.2008 and thereafter, the necessary formalities followed namely, it was received in the office of Divisional Forest Office on 20.3.2008. The case was submitted to the District Attorney on 24.3.2008. The case was then referred to the Conservator of Forests, Nahan on 17.4.2008. Again the Conservator of Forests, Nahan passed a fresh opinion on 12.5.2008. The case was then submitted to the Chief Conservator of Forests on 24.6.2008, where it was examined and some additional information was asked from Divisional Forest Officer on 10.7.2008 and the case was sent to the Additional Chief Secretary Forest, H.P. on 11.9.2008. It is then pleaded: “that the case was received back from H.P. Government on 31.10.2008 for filling the appeal vide Letter No.FFE-A(E)5-1/2006 dated 6.10.2008. The appeal could not be filed within the period of limitation because the long procedure of official channel has to be exhausted which is neither intentional nor deliberate. That the draft was submitted to Advocate General Shimla and approved and vetted the same on 22.12.2008 and fair appeal was filed before the Hon’ble High Court registry on 24.2.2009 and the same was received in the office of Ld. Advocate General on 16.3.2009 with some observations including filing an application for condonation of delay. That the draft was submitted to Advocate General Shimla and approved and vetted the same on 22.12.2008 and fair appeal was filed before the Hon’ble High Court registry on 24.2.2009 and the same was received in the office of Ld. Advocate General on 16.3.2009 with some observations including filing an application for condonation of delay. That the applicants have received present FAO alongwith objections sheet vide office of the Advocate General letter No. 4911 dated 17.3.2009 and thereafter application for delay was prepared and sent to the office of the Ld. Advocate General for vetting. The delay in filing the appeal to the FAO is neither intentional nor deliberate but due to the reasons explained herein above.” This the gist of the allegations made in the application. 3. Affidavit of Divisional Forest Officer Sh. P.K. Damodarn was also filed, reiterating these allegations and elaborating in detail regarding the office procedure etc. etc. which have been followed. The affidavit then continues:- “That in view of the above detailed submissions, it is humbly stated that due to processing and examination of the matter at different channels the present appeal could not be filed immediately after the decision of learned Commissioner Workmen Compensation Act 1923 sub Division Paonta Sahib within the period of limitation. It is further humbly stated that at no stage the matter was intentionally or deliberately delayed, hence the delay in filing the appeal may kindly be condoned in the interest of justice.” 4. Learned Deputy Advocate General submits that the reasons as set out in the application constitute sufficient ground for condonation of delay and that the petitioner had been persuaded the case diligently. Learned counsel for the respondent submits that the application does not disclose any sufficient cause but only shows that the file has been twisted from table to table. It cannot be considered to be “sufficient” in terms as required under Section 5 of the Act. 5. Reliance has been placed to the judgment of Supreme Court in Balwant Singh vs. Jagdish Singh and others, 2010 (8) SCC 685 and particularly paras 25, 26, 34, 35 and 37:- “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation. 26. The law of limitation is substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. 34. Liberal construction of the expression “sufficient cause” is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect “sufficient cause” as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edn., 1997) 35. The expression “sufficient cause” implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. 37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22 CPC along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In SCC para 13 of the judgment, the Court held as under: (SCC pp.329-30) (i) The words ‘sufficient cause for not making the application within reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis in original) We may also notice here that this judgment had been followed with approval by an equi-Bench of this Court in Katari Suryanarayana.” 6. I have heard learned counsel for the parties to say that the delay has been occasioned because of ineptness and lackadaisical attitude of the applicants and do not constitute ground for condonation of delay. The file has been tossed from table to table for opinion to opinion without any manner meeting the mandate of law and that action should be initiated within a period of limitation provided. On the application filed and the evidence on affidavit filed by the applicants, I cannot hold that the delay which has been occasioned is bonafide. If the reasons set out in the application are accepted, it would constitute a ground in all cases to condone the delay in instituting appeals/petitions and would subject the law to an exception which is that it is the whim and pleasure of the State and its functionaries that cases/appeals can be instituted in Court. 7. There is thus, no merit in this application, which is accordingly dismissed. 7. There is thus, no merit in this application, which is accordingly dismissed. FAO No. 323 of 2009: Dismissed, in view of the order passed in CMP No. 608 of 2009.