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2014 DIGILAW 1541 (MP)

State of M. P. v. Ramkalibai

2014-11-26

M.C.GARG

body2014
Judgment M.C. Garg, J.:- Shri B.R. Pandey, Govt. Advocate for the appellant/State. Shri Sarvesh Sharma, Advocate for the respondent. Heard on I.A. No. 298/2008, which is an application filed on behalf of the appellants for seeking condonation of delay. 2. The delay is for the period of about 952 days. 3. The appeal has been filed against the order dated 16-3-2005 passed in Civil Appeal No. 25(A)/2003. 4. As per original application, it has been stated that neither the counsel for the Government nor respondent informed the appellants about the passing of the decree. Immediately after knowing about the knowledge of the aforesaid judgment, they applied for the copy on 7-9-2014. Thereafter, after obtaining permission from the Law Department, they filed this appeal after delay of two years and seven months. Appellants filed an additional affidavit to explain the delay. 5. The reasons given in the additional affidavit for explanation of delay are as follows:-- "That, the order impugned in the present appeal was passed on 16-3-2005 in Civil Appeal No. 25-A/03 as has already been submitted while filing the application under section 5 of the Limitation Act, the judgment and decree impugned in the present appeal dated 16-3-2005 was not brought into the notice of appellant and for the first time knowledge of the same was after filing the application under sections 109 and 110 of the M.P.L.R.C. Wherein the mutation was sought pursuant to the judgment and decree. This application was submitted by the plaintiff/respondent on 22-1-2007 before Naib Tehsildar Umri and case No. 21-A 6/2007-07 was registered. Copy of application submitted and the order dated 22-1-2007 are annexed herewith and marked as ANNEXURES A and B respectively." 6. On perusal para 2, shows that appellants came to know about passing of the judgment dated 16-3-2005 on their own showing on 2-1-2007 i.e. the day when respondent applied for mutation. Copy of application submitted and the order dated 22-1-2007 are annexed herewith and marked as ANNEXURES A and B respectively." 6. On perusal para 2, shows that appellants came to know about passing of the judgment dated 16-3-2005 on their own showing on 2-1-2007 i.e. the day when respondent applied for mutation. Despite having come to know this, the appellants have taken long time in preparing the appeal as is clear from their averments made in the para 3, which reads as under:-- "That, the application which was filed by the plaintiff/respondent on being duly registered was proceeded with in relation to the mutation application and prayer as made during the course of proceedings, the information was sought from the Civil Suit section with respect to the Status of the case and the record, on the said information being sought on 3-4-2007, the Tehsildar Pargana Guna came to the notice of this fact and has written a letter on 16-8-2007 to the Government Pleader Guna seeking legal opinion in the matter. Copy of the letter written by the Tahsildar Pargana Guna dated 16-8-2007 is annexed herewith and marked as ANNEXURE C." 7. Paragraph 3, shows that even the appellants came to know the aforesaid impugned order which according to them, is illegal and should not stand, having taken more than 8 months in getting ready for filing of the appeal. 8. The learned counsel submits that the delay in filing the appeal is the procedural delay. It is also submitted that it is the Government land and therefore, this Court should protect the Government Land. It is further stated, that the possession of the respondent was not legal. 9. All these questions have been examined by the Apex Court in the judgment delivered by the Apex Court in the case of Chief Post Master General and Ors. vs. Living Media India Ltd. and another, reported in AIR 2012 SC 1506 where it has been held that unless reasonable and acceptable explanation of delay and sufficient cause is shown, the application need not be accepted. vs. Living Media India Ltd. and another, reported in AIR 2012 SC 1506 where it has been held that unless reasonable and acceptable explanation of delay and sufficient cause is shown, the application need not be accepted. Relevant para is quoted below:-- "(13) In our view, it is the right time to inform all the government bodies, their agencies and 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 government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay". 10. The learned counsel for the appellant has also given another judgment in this regard i.e. the judgment delivered by the Apex Court in the case of Amlendu Kumar Bera and Ors. vs. State of W.B., 2013 (3) MPLJ (S.C.) 1. Relevant paragraph reads as under: "09. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent-State. There is no dispute that the expression 'sufficient cause' should be considered with pragmatism in justice oriented approach rather than the technical detection of 'sufficient cause' for the explaining every days' delay. However, it is equally well settled that the Courts albeit liberally considered the prayer for condonation of delay but in some cases the Court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in the case of Union of India vs. Nirpen Sharma, 2013 (3) MPLJ (S.C.) 5 : AIR 2011 SC 1237 the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant-Union of India. The High Court refused to condone the delay on the ground that the appellant-Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress, the way the State conduct the cases regularly in filing the appeal after the same became operational and barred by limitation. 10. In the instant case as noticed above, admittedly earlier objection filed by the Respondent-State under section 47 of the Code was dismissed on 17-8-2010. Instead of challenging the said order the Respondent-State after about one year filed another objection on 15-9-2011 under section 47 of the Code which was finally rejected by the executing Court. It was only after a writ of attachment was issued by the executing Court the respondent preferred civil revision against the first order dated 17-8-2010 along with a petition for condonation of delay. Curiously enough in the application for condonation of delay no sufficient cause has been shown which entitle the respondent to get a favourable order for condonation of delay. True it is, that Courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there is serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under section 47 till the decree holder puts the decree in execution. As noticed above, the decree passed in the year 1967 was in respect of declaration of tide and permanent injunction restraining the Respondent-State from interfering with the possession of the suit property of the plaintiff-appellant. It is evident that when the State tried to interfere with possession the decree holder had no alternative but to levy the execution case for execution of the decree with regard to interference with possession. It is evident that when the State tried to interfere with possession the decree holder had no alternative but to levy the execution case for execution of the decree with regard to interference with possession. In our opinion their delay in filing the execution case cannot be a ground to condone the delay in filing the revision against the order refusing to entertain objection under section 47, Civil Procedure Code. This aspect of the matter has not been considered by the High Court while deciding petition for condoning the delay. Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of 'sufficient cause' delay shall not be condoned." 11. The learned counsel appearing for the appellants opposing plea taken of the respondents relies upon the judgment of Apex Court delivered in the case of D.D. Verman vs. State of M.P., reported in AIR 2009 SC 2170 where it has been held in para 3. "We have heard the learned counsel for the parties and examined the impugned order as well as the application for condonation of delay in filing the appeal. Having examined the averments made in the application for condonation of delay in filing the appeal and after hearing the learned counsel for the parties, we are satisfied that the application for condonation of delay of 589 days in preferring the appeal must be allowed as the statements in the application for condonation of delay, in our view, do constitute sufficient cause in not preferring the appeal within the period of limitation. Accordingly, the application for condonation of delay in preferring the appeal is allowed and the impugned order is set aside." 12. It is submitted that if sufficient cause is shown, Apex Court has gone to condone the delay for the period of 589 days. 13. Having considered all the submissions made on behalf of the parties and judgment delivered by the Apex Court even if it is presumed for the sake of argument that the Govt. counsel didn't inform the Government about passing the judgment then there is nothing in the record in this regard and why even an explanation was not sought as to why counsel didn't inform the Government about passing the judgment. counsel didn't inform the Government about passing the judgment then there is nothing in the record in this regard and why even an explanation was not sought as to why counsel didn't inform the Government about passing the judgment. We also find that after coming to know the order and an application was filed by the respondent from mutation in January, 2007, the Government was still not active for 8 months in filing the appeal. As such we cannot say that Government has been able to show sufficient cause to condone the delay. Subsequently, application is dismissed and appeal is therefore, also dismissed.