Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 474 (UTT)

STATE OF UTTARAKHAND v. CHANDAN SINGH

2015-09-29

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. (Oral) By means of present second appeal, the appellants seek to set aside the order dated 08.03.2011, passed by learned District Judge, Almora in Misc. Case no. 68 of 2010, State vs. Chandan Singh Rathore and others, whereby said court has rejected the application of the appellants moved under Section 5 of the Limitation Act for condoning the delay in filing the first appeal, which was filed challenging the order dated 18.08.2010, passed by learned Civil Judge (Jr. Div.), Almora in civil suit no. 55 of 1992, resulting in the dismissal of first appeal. 2. The facts giving rise to the present second appeal are as follows: (i) Respondent no. 1 filed civil suit no. 55 of 1992 seeking a decree for Rs. 12,655/- as salary for the period April 1992 to August 1992, the period during which the respondent was working as L.T. Grade teacher in Kameri Devi Inter College, Bageshwar. Appellants contested the suit and filed their written statement. In the additional pleas of the written statement it was categorically stated that the respondent from 08.05.1992 remained absent from duty without seeking leave from the departmental authorities and he superannuated in the year 2008. It was also stated that in the year 1989, respondent no. 1 was deputed as invigilator during the Board Examinations, but there were allegations against him for helping the students in copying. Respondent no. 1 was removed from the Board duty and was entrusted the duty of transporting the answer books to the examination center but he failed to do even that duty. During the period 14.03.1990 and 15.03.1990, respondent no. 1 was again entrusted duty in Board Examination, but once again he absented himself from duty without intimation and permission to his superiors. (ii) It was also alleged in the written statement that since respondent no. 1 remained absent from duty without intimation, therefore, he was not paid the salary for the period 26.03.1992 to 31.03.1992, but since the pay slips are sent at least by 25th of every month to the office of the District Education Officer (erstwhile District Inspector of Schools), therefore, he was paid the complete salary for the month of March, 1992. On 08.05.1992, respondent no. 1 again absented and continued to do so without intimation and information to his superiors. He also committed acts of indiscipline time and again. On 08.05.1992, respondent no. 1 again absented and continued to do so without intimation and information to his superiors. He also committed acts of indiscipline time and again. It was alleged that respondent no. 1 filed civil suit no. 55 of 1992 on frivolous grounds and finally was able to succeed in said suit. (iii) It was alleged that judgment and order passed by learned Civil Judge (Jr. Div.), Almora was arbitrary, inasmuch as in the plaint itself the respondent no. 1 has sought the salary only for the period April 1992 to August 1992, amounting to Rs. 12,655/-, and never sought any relief with regard to the salary for the subsequent months, and as such, no such relief could have been granted to respondent no. 1. (iv) In the year 1997, District Bageshwar came into existence after bifurcation of District Almora. The Institution namely Kameri Devi Inter College falls in District Bageshwar. It was alleged that originally the suit of the respondent no. 1 was decreed on 31.12.2004 by the then Civil Judge (Jr. Div.), Almora. When respondent no. 1 filed first appeal, being civil appeal no. 500 of 2005, before learned District Judge, said court remanded the case to the trial court directing the court below to decide the case on the point whether the respondent no. 1 sought leave and sanctioned the same for the period April 1992 to August 1992. It was submitted that respondent no. 1 never applied for leaves till his superannuation in the year 2008, therefore, granting leave for the absent period did not arise. Respondent no. 1 never reported to the higher authorities or Managing Committee of the Institution. He was never restrained from entering the college premises, but learned trial court wrongly held that he was restrained from entering into the college premises. (v) Aggrieved against the same, appellants filed appeal before learned District Judge, Almora alongwith application for condonation of delay accompanied with an affidavit stating the reasons for delay in filing the appeal. It was stated in the affidavit that since the case earlier was filed in District Almora, therefore, there was confusion amongst the authorities of both Districts as to which District authorities would file the appeal. Subsequently, permission for filing the appeal was sought from the Director, School Education, Dehradun by the District Education Officer, Almora. It was stated in the affidavit that since the case earlier was filed in District Almora, therefore, there was confusion amongst the authorities of both Districts as to which District authorities would file the appeal. Subsequently, permission for filing the appeal was sought from the Director, School Education, Dehradun by the District Education Officer, Almora. Learned District judge did not find favour with the averments made in the delay condonation application and rejected the same holding that this is nothing but dilatory tactics to linger on the proceedings of the case. Rejection of Section 5 application resulted in the dismissal of the appeal filed by the appellants before the learned District Judge, Almora. 3. Appellant State preferred Misc. Case no. 68 of 2010, titled as State vs Chandan Singh Rathore in the court of District Judge, Almora for condoning the delay in filing the appeal against the judgment and decree dated 18.08.2010, passed by learned Civil Judge (Jr. Div.), Almora. 4. In a nutshell, there was delay of 2 months 11 days in filing the first appeal. The appellants, therefore, filed an application under Section 5 of the Limitation Act for condoning the delay. The reason attributed to such delay was that after bifurcation of District Bageshwar, the matter could not be brought to the knowledge of the Dy. Commissioner, Bageshwar and District Education Officer, Bageshwar. When the matter came in the knowledge of District Education Officer, Almora, he informed the Director, School Education, Dehradun on 22.09.2010 for taking further action. He also reminded the Bageshwar authorities on 06.10.2010, 15.11.2010 and 11.11.2010 that since the matter pertains to District Bageshwar, therefore, they have to do pairivi in the case. 5. Learned court below did not find favour with the contention of the appellants that the delay in filing the first appeal was bona fide. Taking the help of a decision reported in Allahabad Rent Cases, learned court below did not think it proper to condone the delay, which compelled the appellants to approach this Court in second appeal. 6. 5. Learned court below did not find favour with the contention of the appellants that the delay in filing the first appeal was bona fide. Taking the help of a decision reported in Allahabad Rent Cases, learned court below did not think it proper to condone the delay, which compelled the appellants to approach this Court in second appeal. 6. In a judgment rendered by Hon’ble Supreme Court in Balwant Singh (dead) vs Jagdish Singh and others, (2010) 8 SCC 685 , the following was observed: “…….However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows ‘sufficient cause’ for not preferring the application within the prescribed time……” 7. Hon’ble Apex Court in G. Ramagowda vs Special Land Acquisition Officer, AIR 1988 SC 897 and Shakuntala Devi Jain vs Kuntal Kumari, AIR 1869 SC 575 has observed that the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bana fides is imputable to the party seeking condonation of the delay. It has been held by Hon’ble Supreme Court in State (NCT of Delhi) vs Ahmed Jaan, 2008 (10) JT 179 that the expression ‘sufficient cause’ should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. 8. It is true that the case of the appellant State cannot be treated differently from an ordinary litigant. Nevertheless, as has been observed above, that any lis pending before any court should, as far as possible, be decided on merits, instead of rejecting the same on technical ground alone. 9. This Court is, therefore, of the opinion that the order impugned passed by learned District Judge, Almora cannot sustain in the eyes of law. 10. The second appeal is, accordingly, allowed. Order dated 08.03.2011, passed by learned District Judge, Almora in Misc. Case no. 68 of 2010 is hereby set aside. Application filed by the appellants under Section 5 of the Limitation Act is hereby allowed. Delay of 2 months 11 days in filing the appeal is condoned. 10. The second appeal is, accordingly, allowed. Order dated 08.03.2011, passed by learned District Judge, Almora in Misc. Case no. 68 of 2010 is hereby set aside. Application filed by the appellants under Section 5 of the Limitation Act is hereby allowed. Delay of 2 months 11 days in filing the appeal is condoned. As a consequence of which, first appeal filed before the court below, is registered / restored to its appropriate number. 11. At this stage of dictation, learned counsel for the respondent no. 1 made an innocuous prayer that the court below be directed to decide the first appeal at an early date. Learned counsel for the appellant State has no objection to the same. District Judge, Almora is, therefore, requested to make an endeavour to expedite the disposal of the first appeal, which has been filed by the appellant State being aggrieved against the judgment and decree dated 18.08.2010, passed by learned Civil Judge (Jr. Div.) Almora. 12. Let the lower court records of Civil Suit no. 55 of 1992, Civil Appeal no. 08 of 2005 and Misc. Case no. 68 of 2010 be sent back to the courts concerned.