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2013 DIGILAW 547 (MP)

State of M. P. v. Rajaram

2013-04-18

Anil Sharma

body2013
JUDGMENT 1. Heard on I.A.No.1572/13 which is an application under section 5 of Limitation Act for condonation of delay of 3773 days in filing of this second appeal. 2. The appellant has filed this appeal under section 100 of Code of Civil Procedure, 1908 against the judgment and decree dated 20.8.2002 passed in Civil Appeal No.67-A/2002 by learned 12th Additional District Judge (Fast Track Court), Gwalior allowing the suit appeal of the respondents/plaintiffs by reversing the judgment and decree dated 15.2.1997 passed in Civil Suit No.248-A/1994 by learned Third Civil Judge Class -I, Gwalior. 3. Learned Government Advocate for the State has submitted that after passing of judgment and decree in the Appeal on 20.8.2002 the competent authority of the appellant/State approached the Office of Additional Advocate General when he came to know about the impugned judgment and decree passed by learned first appellate Court and Government Advocate has given his opinion on 5.1.2013 to prefer the second appeal. Thereafter, the OIC was appointed vide order dated 4.2.2013 and then the OIC approached the Office of Additional Advocate General, Gwalior and appeal has been drafted and preferred. It has been further stated that the delay is bona fide and caused due to some busyness of the officials in the essential duties. It has been further submitted that looking to the subject involved in the appeal the delay in filing of appeal deserves to be condoned. 4. In order to refute the submissions of appellant’s learned counsel, learned counsel for respondents submitted that in the main suit, the Sub Divisional Officer, Gwalior was OIC and OIC was well aware of the judgment and decree dated 20.8.2002 which was passed after hearing all the parties including the appellant. Appellant was also having the knowledge about the judgment and decree passed by learned first appellate Court in the year 2005 when the plaintiffs have filed an application before Naib Tahsildar, Gwalior for mutation of their name in the revenue record pursuant to the judgment and decree dated 20.8.2002. Certified copy of the judgment and decree dated 20.8.2002 was filed before Naib Tahsildar for mutation. Certified copy of the judgment and decree dated 20.8.2002 was filed before Naib Tahsildar for mutation. Naib Tahsildar rejected the application for mutation vide order dated 11.7.2005 against the said order the appeal No.115/2004-05 was filed before the Sub Divisional Officer who after considering the implication arising out of said judgment and decree dated 20.8.2002 allowed the appeal vide order dated 10.2.2006 and remanded back the matter to the Tahsildar for deciding the same afresh keeping in view the observations made and directions contained in the order dated 10.2.2006. The same SDO was appointed as OIC in the first appeal. 5. Learned counsel for the respondents further submitted that no action has been taken by Tahsildar on the order dated 10.2.2006 passed by SDO therefore, the plaintiffs have filed Writ Petition bearing No.150/2012 before this Court which was decided vide order dated 16.1.2012 and direction was given to the revenue authorities to decide the application of mutation within a period of thirty days but no action was taken by the revenue authorities, therefore, the plaintiffs have filed the Contempt Petition bearing No.84/2013 before this Court in which the notices have been issued to the authorities concerned. The contempt petition is still pending before this Court. There is no bona fide delay in preferring the present appeal and no sufficient cause has been shown by the appellant to condone the delay. 6. Learned Government Advocate for the appellant/State submitted that the authorities were not having any knowledge about the judgment and decree dated 20.8.2002 and when they came to know about the judgment and decree passed by learned first appellate Court they approached the Government Advocate for opinion on 5.1.2013. The appeal has been filed immediately after following the due procedure. It is further submitted that looking to the fact that the land involved in the matter is Charnoi land nf which the plaintiffs are claiming themselves to be the Patta holders, therefore, looking to the property involved in the matter the delay occurred in filing of appeal be condoned. 7. It is further submitted that looking to the fact that the land involved in the matter is Charnoi land nf which the plaintiffs are claiming themselves to be the Patta holders, therefore, looking to the property involved in the matter the delay occurred in filing of appeal be condoned. 7. Learned Government Advocate placed reliance on the decision of apex Court in the matter of State of Haryana v. Chandra Mani and others, AIR 1996 SC 1623 in which it has been held that while considering the provisions of section 5 of Limitation Act that in view of the fact that the Government is impersonal machinery and the decisions are taken at slow space certain amount of latitude is not impermissible. 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 State is an impersonal machinery working through its officers or servants. 8. Learned Government Advocate has further placed reliance on the decision of apex Court in the matter of Special Tahsildar, Land Acquisition, Kerela v. K.V. Ayisumma, AIR 1996 SC 2750 , in which it has been held that in an application for condonation of delay under section 5 of Limitation Act each day’s delay cannot be explained by the State Government and the fact that the transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels, insistence upon explaining every days’ delay by Court would be improper. Such adoption of strict standard of proof leads to grave miscarriage of public justice. 9. Further reliance has been placed by the Government Advocate on the decision of apex Court in the matter of State of Bihar and others v. Kameshwar Prasad Singh and another (2000) 9 SCC 94 in which it has been held that while considering the provisions of Article 136 of Constitution of India that for condonation of delay in filing of appeal before Supreme Court, liberal approach is preferable. Where dismissing the appeal on technical ground of delay would instead of advancing interests of justice, result in failure of justice inasmuch as by virtue of impugned judgment of the High Court not only seniority and promotion of the parties before the Court be affected but those of several other incumbents also be affected, it has been held that the Court would be inclined to condone the delay. 10. Learned counsel for the respondents submitted that the plaintiffs have filed the suit for declaration and injunction on the ground that they have been given Patta of the disputed land in csae No.1152(61)/62 in equal portion vide order dated 24.11.1961 by Tahsildar and thereafter they are doing the agriculture work on the land allotted to them. The State has filed an application under Order XLI Rule 27 read with section 151 of CPC before learned lower appellate Court for bringing on record the Khasra entries of Samvat 1997 showing the disputed land as Charnoi land. 11. Learned counsel for the respondents has placed reliance on the decision of this Court in the matter of Radhacharan Sharma v. State of M.P. through Collector, Dist. Morena , 2013 RN 41 in which it has been held that in a revision by State delay of 23 years cannot be condoned on a bald statement that the matter has public interest. This judgment has been passed by following the judgment passed by the Division Bench of this Court in the matter of Laxmi Bai and others v. Nagaram Khilawandas, 1992 JLJ 458 and the judgment of apex Court passed in the matter of Pundlik Jalam Patil (dead) by Lrs. This judgment has been passed by following the judgment passed by the Division Bench of this Court in the matter of Laxmi Bai and others v. Nagaram Khilawandas, 1992 JLJ 458 and the judgment of apex Court passed in the matter of Pundlik Jalam Patil (dead) by Lrs. v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448 and another judgment of apex Court which includes the latest judgment of apex Court passed in the matter of Maniben Devraj Sah v. Municipal Corporation of Brihan Mumbai, 2012 AIR SCW 2412, relevant portion of which is reproduced below: “In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest”. 12. Learned lower appellate Court has rejected the application filed by State Government and considered the evidence adduced by the plaintiffs according to which the plaintiffs were cultivating on the suit land for 30-35 years and further considering the fact that by whom the entry of Charoni has been made in the Khasra is not clear. The plaintiffs were cultivating the land on the basis of Patta issued to them by the competent authority. 13. Learned counsel for the respondents drew attention of this Court towards paragraph 6 of the judgment which shows the grave negligence on part of State Government in the present case. According to paragraph 6 of impugned judgment, the State has not filed the written statement before learned trial Court even after affording of 24 opportunities to the State, thereafter, their rights of filing the written statement has been closed and exparte was ordered. Before learned lower appellate Court, the State has appeared and filed an application under Order XLI Rule 27 read with section 151 of CPC but no efforts were made to set aside the ex-parte judgment and decree passed by learned trial Court. Before learned lower appellate Court, the State has appeared and filed an application under Order XLI Rule 27 read with section 151 of CPC but no efforts were made to set aside the ex-parte judgment and decree passed by learned trial Court. Here also, the appeal has been filed after 3773 days then too by mentioning the fact that on 5.1.2013 after getting knowledge of impugned judgment and decree, the competent authority has approached the Office of Government Advocate. 14. It is important to note that the present case is an example of not only the grave negligence on part of Government authorities but on part of their Advocates. Learned counsel for the respondents has filed copy of the order dated 10.2.2006 passed by the SDO, Gwalior who was OIC in the case, has set aside the order, rejecting the mutation application and remanded the matter back for reconsideration. In the order it has also been mentioned that the plaintiffs have filed copy of judgment dated 20.8.2002 passed in Civil Appeal No.67-A/2002 which shows that the SDO had knowledge of order passed by learned lower appellate Court at least from 10.3.2006. After that even not only the OIC but the Government Advocate appearing in the High Court were having the knowledge of impugned judgment and decree which is clear from perusal of the order dated 16.1.2012 passed in Writ Petition No.150/2012 by which the revisional authorities were directed to decide the mutation application filed by the respondents within a period of 30 days from the date of receipt of certified copy of the order. The said order was passed after hearing both the parties which shows that not only the OIC but also the Office of Additional Advocate General, Gwalior High Court was having knowledge that the judgment and decree has been passed against the Government on 20.8.2002 and the ulterior motive behind filing of appeal seems to be contempt petition bearing No.84/13 filed against Tahsildar by the plaintiffs in the month of January, 2013 and that is why, the application shows that the Government Advocate has given opinion for filing of appeal on 5.1.2013 to save the authorities from contempt proceedings initiated against them and for which not only the authorities including OIC but the Office of Additional Advocate General, Gwalior has come forward with the false ground that they came to know about passing of impugned judgment and decree on 5.1.2013 and for past 6 years, not only the concerning authorities were having the knowledge of passing of impugned judgment and decree but it was well within the knowledge of Government and their Advocates that the judgment and decree has been passed on 20.8.2002 against them and it seems that after filing of contempt proceedings the second Appeal has been preferred with ulterior motive to save the authorities from contempt of order of Court, therefore, the delay in filing of appeal cannot be said to be bona fide and the authorities who have slept over the judgment and decree for more than 10 years and even for past 6 years they are dealing in official capacity with mutation proceedings and facing the writ petition and contempt petition, they cannot be given the benefit of judgment of apex Court by considering the fact that the leisurely attitude is expected from the Government servant and there is difference between leisurely attitude and revengeful attitude, the attitude in the present case of the authorities is not leisurely but considering the documents on record it is purely revengeful and with an aim to save the authorities from the action in contempt petition against them which cannot be said to be bona fide or sufficient reason for condonation of delay. 15. In view of the aforesaid discussion and further considering the fact that there is no bona fide or sufficient reason for condonation of delay as discussed above, the application (I.A.No.1572/13) is hereby dismissed. Consequently, the appeal is also dismissed.