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Madhya Pradesh High Court · body

2013 DIGILAW 1202 (MP)

Mandir Sri Ram Janki v. Ram Kunwar Bai

2013-10-03

Rohit Arya

body2013
ORDER 1. This appeal by the State is directed against the judgment and decree dated 11.4.2005 passed in First Appeal (Civil) No. 27-A/2002 by learned Additional District Judge, Mungaoli, district Guna (now district Ashok Nagar) reversing the judgment and decree dated 31.7.2002 passed in Civil Suit No. 23-A/1999 by Civil Judge, Class II, Mungaoli, district Guna. 2. Appeal is filed beyond limitation and is barred by 2687 days. Along with memo of appeal, an application under section 5 of the Limitation Act for condonation of delay in filing the second appeal has been filed. The explanation given in the application lacked in material particulars as there is no explanation for the period from the date of the impugned decree i.e. 11.4.2005 till April 2012 and when the knowledge about passing of the judgment and decree by the first appellate Court was received by the appellants/State. Being dissatisfied with skeleton application filed under section 5 of the Limitation Act, this Court on 29.7.2013 passed the following order:- “I.A. No. 4418/2012 filed under section 5 of the Limitation Act seeking condonation of delay of 2687 days in preferring this second appeal is silent about explanation regarding delay which took place from the date of the impugned judgment and decree dated 11.4.2005 till April 2012 except contending that the counsel appearing for the Government before the first appellate Court failed to inform the State about the decision dated 11.4.2005. Moreso, the said application is further silent as to how the knowledge of the judgment and decree dated 11.4.2005 came to the State in April, 2012. Let an additional affidavit be filed by the State explaining the abovesaid delay within a period of 30 days, failing which IA No. 4418/2012 shall be considered on the basis of the averments contained therein. List the case in the first week of September, 2013.” 3. The affidavit filed pursuant to the aforesaid order in fact and in effect contains almost similar averments as in the application for condation of delay and as regards pin pointed query i.e. explanation from 11.4.2005 to April, 2012, there is no explanation at all except evasive statement in paragraph 5 of the affidavit which is as under:- “5. The affidavit filed pursuant to the aforesaid order in fact and in effect contains almost similar averments as in the application for condation of delay and as regards pin pointed query i.e. explanation from 11.4.2005 to April, 2012, there is no explanation at all except evasive statement in paragraph 5 of the affidavit which is as under:- “5. That, on being demanded the explanation for the delay from 11.4.2005 to April, 2012, by this office of Advocate General, the Collector had informed, this office that the action in the nature of the show cause notice to the then OIC to explain the default, has been taken by issuing the notice to him. Copy of show cause notice date 17.9.2013 is enclosed and marked as Annexure-1.” 4. It is hardly an explanation. Moreover, it appears that it is only after this Court passed the order on 29.7.2013 (supra), the State machinery galvanized and in hot haste issued a show cause notice to the O.I.C. as late as on 17.9.2013 just to do lip service and project its self pleasing bona fide. 5. As such, the explanation offered in the application and subsequently filed affidavit in purported compliance of order dated 29.7.2013 neither offers plausible explanation for the undue delay nor is satisfactory in the opinion of this Court. 6. It is apt to quote a dictum and principle of law laid down by the Hon’ble Supreme Court with reference to and in the context of section 5 of the Limitation Act way back in the year 1962 in the matter of Ramlal v. Rewa Coalfields Ltd, ( AIR 1962 SC 361 ), this Court held that, “In construing section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to 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 of excusing delay is shown discretion is given to the Court to condone the delay and admit the appeal. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the Court to condone the delay and admit the appeal. It is further necessary to emphasise that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party or its bona fides may fall for consideration.” 7. The Hon’ble Supreme Court in the case of Postmaster General and Others v. Living Media India Limited and another, (2012) 3 SCC 563 , has made an observation which are of universal application in the matters concerning delay and latches as regards consideration of applications for condonation of delay under section 5 of the Limitation Act. The observations made have direct applicability to the case in hand. Paragraphs 28 and 29 are reproduced as under:- “28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies an instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 29. 8. Learned counsel for the appellants/State has cited two judgments viz. State of Haryana v. Chandra Mani and others, AIR 1996 SC 1623 and State of Bihar and Others v. Kameshwar Prasad Singh and another, (2000)9 SCC 94 . 9. I have carefully perused the judgment. The facts in the aforesaid two judgments are distinguishable and have no application to the case in hand. 10. In view of the aforesaid facts and circumstances, the appeal filed by the appellants/State is dismissed on the ground of delay of 2687 days for want of explanation much less plausible explanation to the satisfaction of the Court. 11. No order as to cost.