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2015 DIGILAW 345 (ORI)

Anchal Bihari Pattnaik v. Indian Oil Corpn

2015-05-15

KRUSHNA RAM MOHAPATRA, P.MOHANTY

body2015
ORDER Krushna Ram Mohapatra, J. 1. This misc. case is filed for condonation of delay in filing W.A. No. 417 of 2014. The writ appeal is filed assailing the judgment dated 06.08.2014 thereby dismissing W.P.(C) No. 21775 of 2011. The Stamp Reporter has pointed out delay of ninety-five days in filing the writ appeal. It has been stated in Paragraphs-3 and 4 of the Misc. case that assailing the impugned judgment dated 06.08.2014, the petitioner-appellants had moved the Hon'ble Apex Court in S.L.P(C) No. 29334 of 2014, which was filed on 11.10.2014. However, by order dated 14.11.2014, the Hon'ble Apex Court permitted the said SLP to be withdrawn. It is also contended by the learned counsel for the petitioner-appellants that the case record was handed over to him on 01.12.2014 after obtaining the same from the learned counsel at New Delhi and the aforesaid writ appeal was filed within three days thereafter. Thus, the delay occurred in filing the writ appeal was bona fide and not intentional. On the aforesaid contention, he has prayed for condonation of delay in filing the writ appeal and hearing the writ appeal on merit. Learned counsel for the opposite party-respondents contested the petition for condonation of delay by filing a detailed counter affidavit. It was strenuously urged that SLP(C) No. 29334 of 2014 was filed at a very belated stage i.e. on 11.10.2014. There is no proper explanation for condonation of delay. The cause shown in the petition for condonation of delay is not sufficient and bona fide and there is a delay of more than three months, which is not justified. In support of his contention, learned counsel for the opposite party-respondents relied upon the decision in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649 and drew attention to Paragraphs-21 and 22 of the said decision setting out the principles to be adhered for condonation of delay as follows: "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 2. Learned counsel for the opposite party-respondents also relied upon the decision of this Court in the case of State of Orissa v. Prafulla Ku. Swain reported in which reliance was placed on the decisions in the cases of State of Hariyana v. Chandra Mani, reported in (1996) 3 SCC 132 , Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, reported in (1987) 2 SCC 107 , Chief Post Master and others v. Living Media India Ltd. & Another, reported in (2012) 3 SCC 563 . 3. Katiji and Others, reported in (1987) 2 SCC 107 , Chief Post Master and others v. Living Media India Ltd. & Another, reported in (2012) 3 SCC 563 . 3. In the case at hand, it is not disputed that the petitioner-appellants had approached the Hon'ble Apex Court in SLP(C) No. 29334 of 2014 assailing the impugned judgment in this writ appeal within the statutory period. However, learned counsel for the petitioner-appellants sought permission of the Hon'ble Apex Court to withdraw the said SLP with a liberty to file a writ appeal before this Court. Permission to withdraw the said SLP was granted vide order dated 14.11.2014. Thereafter, the case record was handed over to the learned counsel for the petitioner-appellants and he filed the present writ appeal. 4. The principles set-forth by the Hon'ble Apex Court in the case of Esha Bhattacharjee v. R.N. Academy, reported in (2013) 12 SCC 649 are followed in the cases of Brijesh Kumar and others v. State of Haryana and H. Dohil Constructions Co. P. Ltd. v. Nahar Exports Ltd., reported in AIR 2014 SC 1612 and (2015) 1 SCC 680 . It is observed in paragraph-11 in the case of Brijesh Kumar and others (supra) as follows: "The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However, the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathic grounds alone." As such, the Court considering the petition for condonation of delay has to carefully draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Moreover, sufficient cause is a condition precedent for exercise of such discretion by the Court for condonation of delay. After careful scrutiny of the pleadings in the misc. Moreover, sufficient cause is a condition precedent for exercise of such discretion by the Court for condonation of delay. After careful scrutiny of the pleadings in the misc. case for condonation of delay, it is apparent that there is a delay in filing the aforesaid writ appeal, but at no stretch of imagination, it cannot be termed as 'inordinate delay' taking into consideration the facts and circumstances of the case. 5. It is the trite law that there should be a liberal, pragmatic, justice oriented and non-pedantic approach while dealing with the application for condonation of delay for the Courts, but the same should not be supposed to legalise injustice. As it appears, though the opposite party-respondents urged strenuously that the petition for condonation of delay is not bona fide and there is inordinate delay in filing the appeal, but no material was placed before the Court in support of the same. On the other hand, in order to protect their rights, the petitioner-appellants had approached the Hon'ble Apex Court in SLP (C) No. 29334 of 2014. Realizing that filing of the writ appeal would be proper to challenge the impugned judgment, he sought permission before the Hon'ble Apex Court to withdraw the said SLP and file a writ appeal before this Court. In view of the above, the cause shown by the petitioner-appellants appears to be sufficient for condonation of delay and the delay caused in filing the writ appeal was bona fide and not intentional. Accordingly, the delay in filing the writ appeal is condoned subject to payment of cost of Rs. 3,000/- (Rupees three thousand) to the learned counsel for the opposite party-respondents within a period of two weeks from today. The misc. case is accordingly disposed of.