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2018 DIGILAW 121 (JHR)

Bhagwan Lal Choudhary v. State of Jharkhand

2018-01-15

AMITAV K.GUPTA, D.N.PATEL

body2018
ORDER : D.N. Patel, J. I.A. No. 1920 of 2017 This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 335 days in preferring this Civil Miscellaneous Petition. Reasons:- 2. Having heard learned counsels for both the sides and looking to the reasons stated in this interlocutory application, especially from paragraph 3 onwards, there are no reasonable reasons for condonation of delay. We, therefore, see no reason to entertain this interlocutory application for condonation of delay. Civil Review No. 115 of 2005 was dismissed tor default vide order dated 6th October 2015 and thereafter there is Long delay on the part of the petitioner in preferring this Civil Miscellaneous Petition without any justifiable reason. Lethargic approach of the petitioner cannot be the ground for condonation of delay. 3. The reasons stated in paragraphs 5, 6 and 7 of I.A. No. 1920 of 2017 in C.M.P. No. 472 of 2016 read as under:- "5. That it is further humbly stated that due to in advertence the list could not be marked properly as all the names of advocates which were appearing in the cause list dated 06.10.2015 at page no. 2 are now no more attached to this Chamber and they are now independent practitioner. Photocopy of page no. 2 of cause list dated 06.10.2015 is annexed hereto marked as Annexure-1 -A forming part of this application. 6. That it is further humbly stated that in the main Civil Review application, no date was fixed for the hearing of this main Civil Review application, so the diary could not be maintained. That several efforts had also been taken to know the exact date fixed for hearing from the registry and internet but however as no date was fixed for hearing, the exact date could not be taken out. 7. That it is humbly stated and submitted that when petitioner approached us for enquiring his case detail and when the case details were taken out from internet, it was found that the matter was dismissed for non prosecution and immediately thereafter on the very same day the certified copy of the order dated 06.10.2015 was applied and procured on same day i.e. 04.10.2016. That after taking the instructions from petitioner, the instant Civil Miscellaneous Petition was filed on 06.10.2016 for restoration of main Civil Review No. 115 of 2005." 4. That after taking the instructions from petitioner, the instant Civil Miscellaneous Petition was filed on 06.10.2016 for restoration of main Civil Review No. 115 of 2005." 4. The aforesaid reasons are not reasonable reasons for condonation of delay of 335 days in preferring this Civil Miscellaneous Petition. This delay is unexplained. 5. It has been held by the Hon'ble Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat, reported in (1981) 1 SCC 495 in paragraph 6, which reads as under:- "6 At the outset, it is urged by learned counsel for the appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State Government took a decision not to file an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired. A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed - and that was long after limitation had expired - that the case was fit for appeal by the State Government. Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay." (Emphasis supplied) 6. It has been held by the Hon'ble Supreme Court in the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, reported in (2008) 17 SCC 448 in paragraphs 15, 16, 17, 18, 19, 20, 23, 26, 27, 28, 29 and 31, which read as under:- "15. Whether the respondent had satisfied the Court that it had sufficient cause for not preferring the appeals within the prescribed time? Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the court to admit any application or any appeal after the prescribed period if it is satisfied that the appellant or the applicant had sufficient cause for not preferring such appeal or application within the prescribed period. 16. In the present case the Reference Court passed the award under Section 18 of the Act on 9-3-2000. On 13-4-2000 itself the Government took decision not to prefer any appeal against the decree and award passed by the Reference Court and accordingly communicated its decision to all concerned including the respondent. The Government vide its Order dated 21-5-2001 refused to review its decision and accordingly informed the same to the respondent beneficiary of acquisition, The respondent beneficiary in its application seeking condonation of delay refers to the Letter dated 19-11-2003 issued by the Secretary, Irrigation Department, directing it to obtain legal advice from an advocate to initiate appropriate proceedings. The respondent instead of acting in the matter once again had chosen to address SLAO vide letter dated 6-2-2004 with a request to challenge the impugned judgment and award of the Reference Court. The respondent instead of acting in the matter once again had chosen to address SLAO vide letter dated 6-2-2004 with a request to challenge the impugned judgment and award of the Reference Court. The same request was made by repeating reminders up to 12-7-2004. On 18-5-2004 the respondent beneficiary addressed a letter to the Collector requesting him to direct the Land Acquisition Officer to prefer an appeal. This correspondence continued up to 21-6-2004. Thereafter, the application along with the appeal seeking condonation of delay was filed on 25.2.2005. 17. The applicant having set the machinery in motion cannot abandon it to resume it after number of years because the authority with whom it had entered into correspondence did not heed to its request to file appeals. The question is: Can the respondent applicant in this case take advantage of its negligence, after a lapse of number of years, of the decision of the Government? It knew the exact grounds on which appeals could have been preferred. The law will presume that it knew of its right to file appeal against the award. Everybody is presumed to know law. It was its duty to prefer appeals before the court for consideration which it did not. There is no explanation forthcoming in this regard. The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights". 18. The question for consideration is whether the averments disclosed any sufficient cause to condone the inordinate delay of 1724 days in filing the appeals. 19. In Ajit Singh Thakur Singh v. State, of Gujarat this Court observed: "6. ... it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause." (Emphasis supplied) This judgment squarely applies to the facts in hand. 20. No event or circumstance arising after the expiry of limitation can constitute sufficient cause." (Emphasis supplied) This judgment squarely applies to the facts in hand. 20. The respondent beneficiary of the acquisition did not initiate and steps whats ever before the expiry of limitation and no circumstances are placed before the Court that steps were taken to file appeals but it was not possible to file the appeals within time. 23. On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour. 26. Basically, the laws of limitation are founded on public policy. In Halsburv's Laws of England 4th Edn. Vol. 28. p. 266. Para 605. the policy of the Limitation Acts is laid down as follows: "605 Policy of the Limitation Acts - The courts have expressed at least three differing reasons supporting the existence of statutes of limitation. namely. (1) that long dormant claims have more of cruelty than justice in them. (2) that a defendant might have lost the evidence to disprove the stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence." 27. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty: some kind of limitation is essential for public order. This Court in Rajender Singh v. Santa Singh has observed: "18. The object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches." 28. In Tilokchand Motichand v. H.B. Munshi this Court observed that this principle is based on the maxim "interest reipublicae ut sit finis litium". that is. the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. 29. that is. the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. 29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. That are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 31. It is true that when the State and its Instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings" (Emphasis supplied) 7. It has been held by the Hon'ble Supreme Court in the case of Cicily Kallarackal v. Vehicle Factory, reported in (2012) 8 SCC 524 in paragraphs 6, 7 and 8, which read as under:- "6. This Court in Anshul Aggarwal v. Noida has explained the scope of condonation of delay in a matter where the Special Courts,Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and the Consumer Protection Act, 1986 is one of them. This Court in Anshul Aggarwal v. Noida has explained the scope of condonation of delay in a matter where the Special Courts,Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and the Consumer Protection Act, 1986 is one of them. Therefore this Court held that while dealing with the application for condonation of delay in such cases the court must keep in mind the special period of limitation prescribed under the statutes). 7. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 8. Hence, in the facts and circumstances of the case as explained hereinabove, we are-not inclined to entertain these petitions. The same are dismissed on the ground of delay." (Emphasis supplied) 8. It has been held by the Hon'ble Supreme Court in the case of Brijesh Kumar v. State of Haryana, reported in (2014) 11 SCC 351 [: 2014 (2) JBCJ 312 (SC)] in paragraphs 6, 10 and 11, which read as under:- "6. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained everyday by the courts. The law of limitation is enshrined in the legal maxim interest reipublicae ut sit finish litium (it is for the general welfare that a period be out to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 10. 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 bonafides 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 sympathetic grounds alone. 11. 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 sympathetic grounds alone. 11. it is also a well-settled principle of law that if some person has taken a relief approaching the court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person." (Emphasis supplied) 9. In view of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this interlocutory application and, hence, the same is, hereby, dismissed.