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2015 DIGILAW 506 (HP)

Nek Ram v. Financial Commissioner (Appeals)

2015-05-11

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. Facts in brief, as are necessary for the adjudication of this writ petition are that, proceeding under Section 163 of the H.P. Land Revenue Act were initiated against the petitioner by Assistant Collector Ist Grade, Mandi and vide order dated 5.1.1993, the petitioner was ordered to be evicted. This order was challenged by the petitioner before the Sub Divisional Collector, Sadar, Mandi on various grounds, however, before the appeal could be heard on merits, the same was dismissed in default on 3.10.2000. Application for restoration came to be filed on 27.1.2003. However, the matter remained pending before respondent No. 3 and ultimately vide order dated 20.1.2012, this application for restoration was rejected. The petitioner filed appeal before the Divisional Commissioner, Mandi, who too dismissed the same and left with no other option he approached the Financial Commissioner, who too dismissed the Revision Petition. It is these orders, which have been challenged by the petitioner before this Court on the grounds that the authorities below should not have dismissed the appeal on mere technicalities and should have decide the case on merits. 2. In response to the petition, the respondents in their reply supported the impugned orders and have further contended that the petitioner for his lapses cannot blame the respondents. It is further contended that ample opportunity was afforded to the petitioner for being heard and sufficient time had been granted to him to defend the matter in the Courts below and the present petition has been filed only to prolong the eviction proceedings. I have heard the learned counsel for the parties and have gone through the records of the case. 3. A perusal of the impugned orders would show that all the authorities below have been influenced by the fact that the application for restoration had been moved after more than two years and three months, little realizing that the decisive factor in condonation of delay, is not the length of delay, but sufficiency of satisfactory explanation. The legislature has conferred the power to condone delay to enable the authorities to do substantial justice to the parties by disposing of the mattes on merits. The authorities below appear to be oblivious and were expected to bear in mind that ordinarily the applicant applying for condonation of delay does not stand to benefit by lodging his claim late. The legislature has conferred the power to condone delay to enable the authorities to do substantial justice to the parties by disposing of the mattes on merits. The authorities below appear to be oblivious and were expected to bear in mind that ordinarily the applicant applying for condonation of delay does not stand to benefit by lodging his claim late. Refusing to condone delay can result in meritorious matters to be thrown out at the very thresh hold and cause of justice being defeated. 4. It also cannot be lost site that a party, who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power has expected of him, should not suffer for the inaction, omission or misdemeanor of his counsel. 5. The procedural rules have to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling the best case of a party, even if, for adequate reasons, which may be beyond its control. 6. It has to be remembered that procedural law is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. Above all, it has to be remembered that the object of Courts and Tribunals is to dispense justice, and not to wreck the end result, on technicalities. 7. In State of Punjab Vs. Shamlal Murari, AIR 1976 S.C. 1177 , it was laid down by the Hon’ble Supreme Court as follows:- “Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administrations of justice…. After all, Courts are to do justice, not to wreck this end product on technicalities.” In Sital Prasad Saxena Vs. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administrations of justice…. After all, Courts are to do justice, not to wreck this end product on technicalities.” In Sital Prasad Saxena Vs. Union of India and others, AIR 1985 SC 1 , while dealing the question of abatement under Order XXII of the Code and allowing substitution at the Supreme Court state, it was laid down as follows: “Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.” In Collector, Land Acquisition Anantnag Vs. Katiji, AIR 1987 SC 1353 , the Hon’ble Supreme Court has observed as follows:- “When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested rights in injustice being done because of a non-deliberate delay.” xxxxxxx “It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 8. In Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (dead) by LRS and others, (2008) 8 SCC 321 , the Hon’ble Supreme Court taking into consideration the law on the subject and laid down the following principles:- “13. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows: (i) The word “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling the appeal after rectification of defects. (v) Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an application is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” 9. In view of the aforesaid exposition of law, it can be conveniently held that the expression “sufficient cause” has to be liberally interpreted and there is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. In such circumstances, the approach of the authorities should be justiceoriented so as to advance the cause of justice and mere delay should not defeat the cause of justice. It is well settled that in matters of condonation of delay highly pedantic approach should be eschewed and justice-oriented approach should be adopted. Every endeavor has to be made to ensure that a party is not made to suffer on account of technicalities. 10. As already observed earlier, none of the authorities have gone into the sufficiency of the explanation offered by the petitioner and have been much influenced by the so called “inordinate delay” in filing of the application for restoration of appeal. 11. There is yet another disturbing feature of this case. The appeal was filed before the Sub Divisional Collector on 4.3.2010 and was dismissed in default on 3.10.2000. The application for restoration was filed on 27.1.2003, but then it took the Sub Divisional Collector nearly ten years i.e. 20.1.2012 to decide the same, that too by rendering self contradictory observations, inasmuch as in the earlier part of the order it appears that the application for restoration was accepted and allowed, while in the next paragraph he rejects the application, that too by holding that the petitioner had not appeared intentionally. The relevant portion of the order is quoted below:- “Feeling aggrieved and dissatisfied with the order of AC 1st Grade Tehsil Sadar the appellant preferred appeal before this court alleging therein that the Kanungo as well as the AC Ist Grade have not inspected the spot in the presence of the appellant. He also alleged that he has not been afforded an opportunity of being heard. Moreover the appellant has not been allowed to lead the evidence in order to establish his case and as such the learned court below has passed wrong and illegal order which is liable to be set aside. The appeal was dismissed in default on 3.10.2000 and the appellant has filed an application under order 9 rule 9(1) read with section 151 C.P.C. for restoration of appeal which was accepted and allowed. I have heard the ld. counsel for appellant and also gone through the lower court record and also record file of this court carefully. It has been found that the ld. I have heard the ld. counsel for appellant and also gone through the lower court record and also record file of this court carefully. It has been found that the ld. counsel for the appellant appeared in the court regularly. The ld. counsel was given last opportunity to put forward his arguments on dated 29.03.2000. But inspite this fact, he did not appear intentionally on the said date. Hence application is rejected. A copy of this order be sent to the AC Ist Grade Tehsil Sadar Mandi District Mandi for compliance. Case file along with original file be consigned to GRR after due completion.” That apart, it is also not understood as to from where the Collector has concluded that the petitioner had not appeared intentionally on 3.10.2000 when the case had been dismissed in default. Before arriving at such a conclusion, it was incumbent upon the Collector to have recorded reasons for the same. 12. In view of the detailed discussion above, I find merit in this petition and the same is accordingly allowed and the orders as contained in Annexures P-1 to P-4 are quashed and set aside and the matter is remanded to the Sub Divisional Collector, Sadar, District Mandi for decision afresh. Since these proceedings are pending for more than two decades, the Sub Divisional Collector is directed to decide the proceedings as expeditiously as possible and in no event later then 15th July, 2015. The parties are left to bear their costs.