Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 2654 (MAD)

Sundharavadivel v. District Collector, Dindigul District, Dindigul.

2015-07-29

K.K.SASIDHARAN

body2015
ORDER The application filed by the respondents to condone the delay of 3050 days in filing the appeal was allowed by the learned Subordinate Judge, having camp at Kodaikanal. The said order is under challenge in this civil revision petition. 2. The petitioner filed a suit against the respondents in O.S.No.63 of 1996 before the learned District Munsif, Kodaikanal. It was a suit for injunction. The suit was decreed by the trial Court in respect of 1 acre of land. 3. The respondents long after the decree, filed an appeal on 09 January 2013 along with an application to condone the delay. The respondents in the said application contended that there was frequent transfer of officers dealing the matter and as such, the appeal could not be filed within the statutory period. The respondents have further stated that the related records were mixed up with other records. The learned Subordinate Judge, allowed the application. The said order is under challenge in this civil revision petition. 4. The learned counsel for the petitioner contended that respondents have not given any valid reason to condone the appeal. According to the learned counsel, the suit was rightly decreed in favour of the petitioner and as such, the same cannot be set aside in a casual manner. 5. The respondents in the affidavit filed in support of the application in I.A.No.2 of 2013 explained the delay in preferring the appeal. 6. The Supreme Court in G.Ramegowda v. Spl. Land Acquisition Officer [ 1988(2) SCC 142 ], indicated that in respect of Government litigation, the Court should show certain amount of latitude. The relevant observation reads thus: "15. In litigation to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. 16. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. 16. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. 17. Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government." 7. The Supreme Court in Spl. Tehsildar, L.A.Kerala v. K.V.Ayisumma [ 1996(10) SCC 634 ] observed that it would be very difficult for the Government to explain the day-to-day delay. The Supreme Court said: "2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. Tehsildar, L.A.Kerala v. K.V.Ayisumma [ 1996(10) SCC 634 ] observed that it would be very difficult for the Government to explain the day-to-day delay. The Supreme Court said: "2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedantic." 8. The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [ 1998(7) SCC 123 ], observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding. "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court." 9. The Supreme Court in M.K.Prasad v. P.Arumugam [ 2001(6) SCC 176 ], while considering the question regarding delay in applying for setting aside the exparte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of parties, while deciding an application to set aside the exparte decree. 10. The Supreme Court in Ram Nath Sao v. Gobardhan Sao [ 2002(3) SCC 195 ], explained the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said: "12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision 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 a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 11. The Supreme Court in State of Nagaland v. Lipok AO [ 2005 (3) SCC 752 ], indicated that the merits should be preferred and the case should not be turned down on technicalities of delay in presenting the appeal. The relevant observation reads thus: "13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal." 15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intention or otherwise- - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justiceoriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factor which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit..................." 12. The Supreme Court in Parimal vs. Veena [2011(2) Scale 302], explained the concept of "sufficient cause". The Supreme Court said: "9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. 11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it." 13. The Supreme Court in S.Ganesharaju vs. Narasamma [2012(4) Scale 152], observed that matters should be heard on merits rather than shutting the doors at the threshold. The Supreme Court in S.Ganesharaju vs. Narasamma [2012(4) Scale 152], observed that matters should be heard on merits rather than shutting the doors at the threshold. The relevant observation reads thus: "15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act. 1963, has to be given a liberal construction so as to advance substantial justice. 16. Unless Respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by. 17.Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. 18. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. 19. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter." 14. The respondents have demonstrated that on account of certain administrative reasons, they could not file the appeal within the statutory period. Those reasons were accepted by the learned appellate Judge. There is no question of interfering with the discretion exercised by the learned appellate Judge. I am therefore of the view that there is no merit in the civil revision petition. 15. In the upshot, I dismiss the civil revision petition. No costs. Consequently, connected M.P.(MD) No.1 of 2015 is also dismissed.