Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 152 (GAU)

Union of India v. Girish Das Biswas

2017-02-06

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : 1. Heard Mr. B. N. Gogoi, learned counsel appearing for the appellant. Also hard Mr. S. K. Ghosh, learned counsel appearing on behalf of the respondent No.1. 2. This Second Appeal is directed against the judgment and order dated 05.01.2016 passed by the learned Civil Judge, Dhubri in Title Appeal No.29/2015 refusing to condone the delay of 15 years in preferring the appeal against the judgment and decree dated 07.12.1999 passed by learned Civil Judge (Junior Division) No.1, Dhubri Title Suit No.320/1998, thereby dismissing the appeal. 3. It appears from the record that the respondent No.1, as plaintiff, had earlier instituted Title Suit No.320/1998 before the Court of Civil Judge, Junior Division No.1, Dhubri against the present appellant and the aforesaid suit was decreed by the trial Court on 07.12.1999. The appellant railways had assailed the judgment and decree dated 07.12.1999 by filing the aforementioned appeal only in the year 2015 i.e. after a delay of more than fifteen years. The learned Lower Appellate Court was of the view that the appellant had the knowledge about the judgment and decree way back in the year 2001 and since there was no proper explanation for the delay, the prayer for condonation of delay was rejected. 4. Record reveals that the learned penal lawyer for the appellant had initially entered appearance in the aforesaid Title Suit but subsequently failed to take steps in the matter. Rejecting the contention of the appellant that the aforesaid counsel was engaged by the Railway authorities in connection with some other case and hence, he was not authorized to represent the Railways in Title Suit No.320/1998, the first appellate court had dismissed the appeal by making the following observations :- “Even otherwise, if it is held that the engaged counsel was not appointed to represent the Railways in the Title Suit No.320/1998 then also it is seen that the railway authorities had the knowledge about the impugned judgment and decree in the year 2001 itself which is evident from the admission made by the appellant herein where it is stated that in the year 2001 the representative of the railway authorities met the revenue officials and ensured that the directions in the impugned judgment and decree is not carried out. The appellant has further submitted that some persons of the locality instituted another suit for cancellation of the impugned judgment and decree and the railway authorities were made a party in the said suit and the railway authorities appeared and contested the same as such it is seen that the railway authorities admittedly knew about the impugned judgment and decree in the year 2002 itself and also filed their written statement therein stating that the impugned judgment and decree is liable to be cancelled; as such it is seen that the railway authorities had the knowledge and in fact prayed in Title Suit No.249/2002 for cancellation of the impugned judgment and decree. It is also an admitted fact that the plaintiff herein filed W.P(C) No.139/2003 and the appellant contested the same as such it is seen that the railway authorities knew about the impugned judgment and decree and also knew that the said judgment and decree is put into execution. It is further admitted that the plaintiff herein thereafter filed another writ petition being W.P(C) no.2956/2008 and the Hon’ble High Court vide its judgment dated 12/12/2013 rejected the plea of the State of Assam and held that the impugned judgment and decree is binding upon them and further directed for cancellation of the name of N.R. Railways and for correction of the name of the plaintiff in the suit land. It is further revealed from copy of the letter dated 18/1/2014 filed by the appellant that the engaged counsel, Shri S. K. Das had informed the appellant herein and the railway authorities regarding the judgment passed by the Hon’ble Gauhati High Court in the W.P(C) no.2956 of 2008.” 5. It is not the case of the appellant that the findings and conclusion recorded by the learned Lower Appellate Court are perverse. Mr. Gogoi, learned counsel for the appellant, also could not deny the fact that the appellant had knowledge of the impugned judgment and decree since the year 2001. The appellant’s counsel has, however, made an attempt to justify the delay by submitting that the Railway authorities were not well conversant with the law and hence, were not aware of the effect of not preferring appeal against the impugned decree within the period of limitation. The aforesaid submission advanced by learned Standing Counsel for the appellant, I am afraid, cannot be accepted by this court. The aforesaid submission advanced by learned Standing Counsel for the appellant, I am afraid, cannot be accepted by this court. It is a matter of common knowledge that the mighty Railways have a battery of competent lawyers in its panel constantly rendering legal advice to the department and if the appellant was at all serious about challenging the impugned decree, there was nothing preventing the authority from seeking proper legal advice in the matter and thereafter, take appropriate steps to annul the decree. But no such attempt was admittedly made by the appellant till the year 2015. What needs to be noted here-in is that it is not even the case of the appellant that they were misled by wrong legal advice. Therefore, the above stand of the appellant, in the opinion of this court, besides being wholly untenable in the eye of law, also lacks bonafide. 6. As has been noted above, there is no proper explanation as to the reason for the delay of 15 years in preferring the appeal. From the stand taken by the appellant it is apparent on the face of the record that the appellant and/it officers were sitting over the matter all while adopting very casual approach in the matter which was lacking in any sense of purpose and it was only after the lapse of 15 long years that they woke up from deep slumbers to preferred the appeal. 7. Dealing with the point in issue, the Hon’ble Supreme Court in the case of Office of the Chief Post Master General and others vs. Living Media India Ltd. and another, reported in AIR 2012 SC 1506 , had taken a serious note of the casual manner in which Government departments are functioning in utter disregard to the Law of Limitations and while dismissing an appeal on the ground of delay had made the following observations :- “12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the mater by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decision. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural re-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.” 8. The decision of the Hon’ble Supreme Court in the case of Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, reported in AIR 2012 SC 1629 is also another case of unexplained delay on the part of the State and/or its instrumentalities wherein the Supreme Court has observed as follows :- “18. The decision of the Hon’ble Supreme Court in the case of Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, reported in AIR 2012 SC 1629 is also another case of unexplained delay on the part of the State and/or its instrumentalities wherein the Supreme Court has observed as follows :- “18. What needs to be emphasized is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.” 9. After hearing the learned counsel for the parties, this court is of the view that the ratio of the aforementioned decisions of the Supreme Court will be applicable to the facts of the present case as well. This is also another case where the appellant department has failed to furnish any proper and reasonable explanation for the long delay. After hearing the learned counsel for the parties, this court is of the view that the ratio of the aforementioned decisions of the Supreme Court will be applicable to the facts of the present case as well. This is also another case where the appellant department has failed to furnish any proper and reasonable explanation for the long delay. Having remained negligent in pursuing the remedy available under the law against the impugned decree, the appellant cannot now be permitted to avail the dividends of their own lapses so as to extinguish the rights accruing in favour of the respondent no.1 by preferring the appeal at this distant point of time. 10. For the reasons stated above, this court is of the considered opinion that the learned court below has rightly dismissed the appeal filed by the appellant on the ground of delay. There is no substantial question of law arising in this case warranting admission of the second appeal and therefore, this appeal stands dismissed.