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2016 DIGILAW 719 (ORI)

Manoj Kumar Mishra v. State of Orissa

2016-08-31

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This appeal challenges the correctness of the order dated 26.3.1998 passed by the learned District Judge, Khurda, Bhubaneswar in Title Appeal No. 84/33 of 1997/1995 refusing to condone the delay and thereby dismissing the appeal. 2. The appellant as plaintiff instituted Title Suit No. 264 of 1998 for declaration of title in the court of the learned Additional Civil Judge (Jr. Division), Bhubaneswar impleading the respondents as defendants. The suit was dismissed. Assailing the judgment and decree dated 25.9.1993 and 9.10.1993 respectively passed by the learned Additional Civil Judge (Jr. Division), Bhubaneswar, he filed Title Appeal No. 84/33 of 1997/1995 before the learned District Judge, Bhubaneswar. Since there was delay of 657 days, an application under Section 5 of the Limitation Act was filed to condone the delay. By order dated 26.3.1998, the learned appellate court dismissed the application for condonation of delay and, consequently the appeal was dismissed. 3. This appeal was admitted on the following substantial question of law: “Whether the learned District Judge, Khurda, Bhubaneswar was justified in rejecting the application under Section 5 of the Limitation Act filed by the appellant for condonation of delay?” 4. Mr. Panda, learned Advocate for the appellant, submitted that the appellant was prevented by sufficient cause in not filing the appeal in time. In the application for condonation of delay, the appellant had vividly described the cause of delay, but then the learned appellate court without considering the matter in its proper perspective, rejected the application for condonation of delay. 5. Per contra, Ms. Mishra, learned Additional Standing Counsel for the respondents, supported the order passed by the learned appellate court. 6. The apex Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 enunciated the principles to be taken into account while considering the application for codnonation of delay. Paragraphs 21 and 22 of the report are quoted hereunder:- “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. Paragraphs 21 and 22 of the report are quoted hereunder:- “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. (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, behaviour 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 harbouring 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 within 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.” 7. On the anvil of the decision cited supra, the case of the appellant may be examined. In an application for condonation of delay, it is stated that the appellant was serving in the Military. He used to stay at frontier areas. Therefore, it was not possible on his part to keep track of the case. He had executed a power of attorney in favour of his younger brother. The deposition of the power of attorney holder was recorded on 22.2.1993. It is further stated that his younger brother was a Senior Sales Executive in Godrej India, who used to travel in most part of the month. He had executed a power of attorney in favour of his younger brother. The deposition of the power of attorney holder was recorded on 22.2.1993. It is further stated that his younger brother was a Senior Sales Executive in Godrej India, who used to travel in most part of the month. Since there was delay in delivering the judgment, he instructed the Advocate’s Clerk to inform him about the delivery of the judgment. He was under the bona fide impression that the Advocate’s Clerk would intimate him promptly about the delivery of the judgment, but then the Advocate’s Clerk lost his address. Finally, on 3.7.1995, he went to the Advocate’s Clerk and enquired about the matter. The Advocate’s Clerk replied that he was unable to communicate him as he lost the address. The certified copy of the decree was obtained on 18.7.1995. Thereafter the power of attorney holder tried to contact the appellant and in the process fifteen days was consumed. The instruction was obtained on 4.8.1995. After obtaining the instruction, the power of attorney holder contacted the lawyer on 5.8.1995. After preparing grounds of appeal on 6.8.1995, the same was presented on 7.8.1995. 8. The assertion of the appellant is that he had executed a power of attorney in favour of his younger brother. A stand had been taken that the power of attorney holder was a Senior Sales Executive of Godrej of India and used to travel through out the country for which he could not keep track of the case. The deposition of the power of attorney holder was recorded on 22.2.1993. The suit was dismissed on 25.9.1993. The appeal was filed on 7.8.1995. It is difficult to believe that the power of attorney holder was travelling the country for near about one year nine months day in and day out and he could not keep track of the case. The grounds urged in the application for condonation of delay are fanciful. To say the least, the conduct of the appellant is not bona fide. The appellant was not prosecuting the lis diligently. There was inordinate delay of 657 days in filing the application for condonation of delay. No cause, much less any sufficient cause, had been shown. The learned appellate court had rightly dismissed the application for condonation of delay. The substantial question of law is answered in positive against the appellant. 9. The appellant was not prosecuting the lis diligently. There was inordinate delay of 657 days in filing the application for condonation of delay. No cause, much less any sufficient cause, had been shown. The learned appellate court had rightly dismissed the application for condonation of delay. The substantial question of law is answered in positive against the appellant. 9. Accordingly, the Second Appeal is dismissed. No costs.