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2011 DIGILAW 281 (CAL)

Sraban Kumar Choudhury v. State

2011-02-28

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT 1. THE Judgment of the Court was as follows : What may be sufficient for the Applicant, may perhaps be insufficient for the respondents shorting out the delay in filing Petitions within the ambit of Section 5. "..........the applicant satisfies the Court that he had "sufficient cause"" is a ever widening dimension in the field. Perhaps, the last word on the subject is yet to be said. 2. IN such trajectory we have taken up a Petition for condonation of 284 days delay in preferring the appeal at the instance of the Applicant, who seeks compassionate appointment in the place of his Deceased Father. He has sought to make out a case through the averments made in Paragraphs 5,6,7 and 8 of the Petition. On the basis of the same, Shri Bari for the Applicant has submitted that since there were reasons which were beyond the control of the Applicant-delay occasioned and as a result of which he was precluded from filing the appeal on time. As such, Shri Bari has prayed for condoning the delay and admitting the appeal on merit. 3. ON the contrary, Shri Oli Mohammad referred to a decision of the Supreme Court in D. Gopinathan Pillaiv. State of Kerala and Anr., (2007)2 SCC 322 : (2007)1 WBLR (SC) 726. Shri Oli Mohammad submitted on the strength of the said Judgment that unless the reasons for the delay are satisfactorily explained, the Court should not entertain the Petition. 4. SHRI Oil Mohammad also submitted that there was a delay of 284 days which remained unexplained. Accordingly, Shri Oli Mohammad has prayed for dismissing the Petition along with the appeal. 5. IN the teeth of the stiff opposition of Shri Oli Mohammad we would be required to see the efficacy of the prayer made by Shri Bari in this Petition. 6. THE provisions of Section 5 of the Limitation Act is situated in such a catchment area where the Applicant feels he has an inalienable right invoking the charity and leniency of the Court while the respondent feels that an otherwise well earned Order has been sought to be upset by misusing such liberty by adding some grace provision to the delay. We will restrict ourselves simply to the logistics of the position without being guided by either of the situations. Section 5 of the Limitation Act reads as follows:- "5. We will restrict ourselves simply to the logistics of the position without being guided by either of the situations. Section 5 of the Limitation Act reads as follows:- "5. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Or. XXI of the Code of Civil Procedure 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 7. IN other words, what is otherwise barred by a sense of delay, may be cured by application of the provisions of Section 5 of the Limitation Act. 8. NOW, the question would arise as to invocation of the said power and that too under what circumstances. Various authorities governed the field in this regard. 9. LONG long ago, the Supreme Court in Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and Anr., AIR 1968 SC 222 speaking through Bachawat, J. referring to its earlier decisions as well as to a decision of Madras High Court dwelt on the question of discretion in condonation of delay in respect of the appeals presented beyond the time, provided sufficient cause for the same is shown. It was held that such discretion like other discretion must be exercised with vigilance and circumspection according to justice, common sense and sound judgment. 10. LATER on, writing the Judgment for the Supreme Court Bench, Vaidiaalingam, J. in The State of West Bengal v. The Administrator, Howrah Municipality and Ors. etc., AIR 1972 SC 749 has held: "30...........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." In more recent times the Supreme Court in State of Nagaland v. Lipok Ao and Ors., (2005)3 SCC 752 and State (NCT of Delhi)v. Ahmed Jaan, (2008)14 SCC 582 and State of Haryana v. Chandra Mani and Ors. reported in (1996)3 SCC 132 have taken a mellowed stand in this field. reported in (1996)3 SCC 132 have taken a mellowed stand in this field. The summum bonum of these decisions show that technicalities should not stand in the way to defeat substantial justice. 11. EVEN in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and Anr. reported in (2010)5 SCC 459 : (2010)4 WBLR (SC) 150 the Supreme Court discussed the Law in this regard and held : "15. The expression "sufficient cause" employed in Section 5of the Limitation Act, 1963 and similar other statues is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard- and-fast rule can be laid down in dealing with applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and stricter approach where the delay is inordinate" 12. IN the panorama of such situation we would be required to absorb the delay of 284 days which has been sought to be explained by Shri Bari on behalf of the Applicant on the anvil of Shri Oli Mohammad's criticism. We find that Shri Bari has given his reasons in support of the delay through the various averments made in the Application. More particularly in Paragraphs 5, 6 and 7 Shri Bari has been able to make out a prima facie case. The Applicant has affirmed the said Paragraphs as 'true to his knowledge'. As such, these averments are not mere assertions but have some testimonial effect. 13. READING the same in the twilight of the decisions referred to by Shri Oli Mohammad in D. Gopinathan Pillai v. State of Kerala and Anr.'s case (supra), we are of the considered view that Shri Bari has been able to make out a prima facie case in his support for condonation of delay of 284 days in filing the appeal. 14. IN Paragraph 5 of the D. Gopinathan Pillai v. State of Kerala and Anr.'s case (supra), the Supreme Court had held: "...........It is well-considered principle of law that delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason..." In our most humble view, Shri Bari has been successful to be able to make out a sufficient cause for the reason of the delay and the same appeals to us as reasonable and satisfactory. 15. 15. FOR the purpose of furtherance of substantial and wholesome justice, we are of the conclusive view that the delay of 284 days is required to be condoned. 16. WHILE coming to this conclusion, we feel that the statute vests a wide discretion on a Court to consider the prayer made for admission of a Petition or appeal after the statutory period for filing the same is over. Once such a discretion has been vested; of course, it has to be exercised with circumspection and proper application of Judicial discretion devoid of any caprice. In order to arrive at our conclusion we have imbibed in our mind the mission of Justice according to the Constitution and the Law of the land and not to our individual perspective. In the instant case a person is before us, who is practically the last man in the queue and by way of application of the Law of limitation shutters are required to be rolled down on his face by saying it is time. In the event we do so, we will be engineering injustice jettisoning a lawful claimant of Justice on the other side. 17. THIS cannot be so. 18. IN hind sight, it has always to be kept in mind that howsoever magnanimous a Court may be, such magnanimity cannot be at the cost of a vested right acquired by the other party, which becomes relinquished on account of allowing his opponent to have entry after curing defects of delay by applying the provisions of Section 5 of the Limitation Act. But in the instant case it is required to be seen as to what benefit does the Applicant derives in such delay ? After all, delay did not enure to his benefit on the contrary, it has pushed him behind his claim, which he has been pursuing over the years. He has a cause before us. Applying the cold logic of reasoning, we are afraid, Justice would remain frost bitten. More particularly, no third party right accrued for this delay which could be otherwise have been termed as acquiescence of the Applicant in subscribing to the delay and the Court should have been weary in accepting the prayer by condoning the delay disturbing the right already acquired to the benefit of the said third party. 19. More particularly, no third party right accrued for this delay which could be otherwise have been termed as acquiescence of the Applicant in subscribing to the delay and the Court should have been weary in accepting the prayer by condoning the delay disturbing the right already acquired to the benefit of the said third party. 19. IN exercise of our Judicial discretion, as we have found it is substantial justice which should not be mowed down by technicalities and being crowned by sufficient cause the delay is required to be condoned. 20. APPLICATION allowed.