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2018 DIGILAW 2179 (HP)

Arun Kumar v. State Of H P

2018-12-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Cmp(M) No. 1586/2018 Notice. Mr. Bhupinder Thakur, learned Deputy Advocate General appears and waives service of notice on behalf of the respondents-State. 2. By medium of this application, the applicant has sought condonation of delay of 8 years 4 months and 5 days, that has crept up in filing the review petition. 3. It is averred that the petitioner filed O.A. No. 995/1998 before the H.P. Administrative Tribunal, which remained pending till the time the Tribunal was abolished. During this period, many applications were filed for early hearing of the matter, but the same were turned down. It is further averred that when the Tribunal was abolished, the file was taken by the applicant from his counsel, who was representing him before the Tribunal and handed over the file to another counsel. The counsel then filed CMPMO before this Court on 24.4.2009 seeking directions for calling for records of O.A. No. 995/1998, which was registered before this Court as CWP(T) No.5746/2008. However, after disposal of the CMPMO, there was no counsel representing the applicant in CWP(T) No. 5746/2008, yet the counsel, who had been subsequently engaged remained under impression that as and when the case would listed, his name would be reflected in the cause list. But, it was a a mistaken belief because in CWP(T) No.5746/2008, a separate power of attorney was required to be filed and, therefore, when the case was listed before this Court on 23.6.2010, there was no appearance on behalf of the applicant and the Court was pleased to dispose of the petition. It is further averred that even though the presence of the previous counsel presence is reflected in the order dated 23.6.2010, however,that was only on account of the fact that he had filed his power of attorney, whereas file had already been taken from him by the applicant, therefore, the counsel was definitely not in a position to argue the case and assist the Court. It is further averred that even though the presence of the previous counsel has been marked, the counsel never informed the applicant about the decision of the case, whereas the counsel subsequently engaged by the applicant remained under impression that the case has still not been listed and it was only now after making enquiries, it transpired that the case had already been disposed of on 23.6.2010. Lastly, it is averred that the delay is neither willful nor intentional, but has been caused only on account of the aforesaid facts and circumstances. It is in these circumstances, the applicant has prayed for condonation of delay. 4. I have heard the learned counsel for the parties and have gone through the records of the case carefully. 5. It is more than settled that in matters of the instant kind the Courts normally are required to adopt liberal approach specially while dealing with the application for condonation of delay as ordinarily a litigant does not stand to benefit by lodging a petition late and refusal to condone delay can result in an meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It is clearly settled that the approach in such matter should not be a pandentic, but the doctrine that is to be kept in mind is that the matter has to be dealt in a rational commonsense, pragmatic manner and cause of substantial justice deserves to be preferred over the technical consideration. 6. However, at the same time, the Court is also required to see whether there are lack of bona fides imputable to a party seeking condonation of delay. It has also to take into consideration the conduct, behaviour and attitude of a party relating to its inaction or negligence while approaching the Court. It has further to be ensured that the concept of liberal approach has to be encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play because there is increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in an non-challant manner, which requires to be curbed, of course, within the legal parameters. This legal position is succinctly expounded in the judgment of the Hon ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy , (2013) 12 SCC 649 , wherein while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay the principles applicable thereto were summarised as follows:- (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. (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. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (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.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (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. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (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. (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. (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. (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. (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. (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. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (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. (d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. 7. In view of the aforesaid exposition of law, it is crystal clear that in seeking condonation of delay in filing of the review petition, it is incumbent on the party seeking such condonation to show sufficient cause, which prevented the applicant from filing the review petition within the statutory period. 8. Adverting to the facts of the case, it would be noticed that the applicant has tried to claim that he was diligent in pursuing his case, however, the records speak otherwise. 9. Any counsel engaged in a matter would know that he can appear in the Court only after a power of attorney is executed by the client in his favour, that too, for that particular case. 10. 9. Any counsel engaged in a matter would know that he can appear in the Court only after a power of attorney is executed by the client in his favour, that too, for that particular case. 10. Here, it is duly established on record that the counsel engaged by the applicant in CMPMO was only for that case as no power of attorney (as admitted by the applicant himself) was ever executed in favour of that counsel for representing the applicant in CWP(T) No. 5746/2008 and, therefore, there is no question of the later counsel being under impression that his name would be reflected in the cause list. Even otherwise, such averments are not even supported by an affidavit of the counsel, who is alleged to have been subsequently engaged. 11. Further, it would be noticed from the perusal of the impugned order dated 23.6.2010 that the presence of the counsel is duly recorded therein. It is more than settled that the proceedings of the Court recorded in the order-sheet are sacrosanct and in case, the counsel had no instructions, as is now averred in the application, then it was incumbent upon him to have filed an affidavit of the said counsel. 12. In this background, this Court has no hesitation to conclude that the applicant in order to seek condonation of delay has weaved a cock and bull story and the application not only lacks bonafide, but it is based on the false averments. There has been gross inaction or negligence on the part of the applicant in filing the review petition within the prescribed period of limitation and the explanation being offered is concocted. The conduct and attitude of the applicant only reflects upon his inaction, negligence and lackadaisical attitude. 13. The applicant has failed to carve out sufficient cause for condonation of delay, accordingly the application is dismissed, leaving the parties to bear their own costs. Review Petition No.90/2018 14. Since, the application for condonation of delay has been dismissed, the this petition is also dismissed accordingly.