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2018 DIGILAW 223 (ORI)

Minakshi Sarangi v. State of Orissa

2018-03-06

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. This is an application under Section 5 of the Indian Limitation Act for condoning delay in filing the Second Appeal. 2. Learned counsel for the appellant-petitioner submitted that the plaintiff-appellant has been in possession of the suit land since 1968 by reclaiming the same. She has built a house thereon and has been possessing the same uninterruptedly and peacefully to the knowledge of all including the present defendant with hostile animus. She has also been paying municipal holding tax, electricity dues but in Hal Settlement Operation, the suit land became recorded in favour of General Administration Department of the Government of Orissa. 3. Learned counsel for the appellant-petitioner further submitted that due to wrong recording of R.O.R. the officers of the defendant have threatened to dispossess her for which she filed the suit for declaration of right, title, interest and confirmation of possession with correction of R.O.R. and for recovery of possession if found dispossessed during pendency of the suit. It is contended that the learned trial court without understanding the issue in question, dismissed the suit against which appeal was preferred to the learned lower appellate court, which concurred with the finding of the learned trial court without considering the evidence on record. 4. Learned counsel for the appellant-petitioner submitted that the petitioner is a poor woman for which she arranged money to file the Second Appeal and while arranging money, it became late to approach the lawyer to file the Second Appeal. Thus, there is sufficient cause for her to file Second Appeal in delay on 04.8.2017 although the judgment of the appellate court was passed on 22.8.2015. Since there is every chance of her success in the appeal, and the petitioner being a poor lady having no means of livelihood, the appeal may be admitted by condoning delay under Section 5 of the Limitation Act. 5. Learned Addl. Govt. Advocate submitted that there is concurrent finding of the learned lower appellate court which would go to show that the petitioner has no merit in the appeal. According to him, the suit land is a Government land and the petitioner has been forcibly claiming her possession although the said land has been allotted to a school, which is running on the suit land. There is already an eviction proceeding against the petitioner interrupting her claim of possession. 6. Learned Addl. Govt. According to him, the suit land is a Government land and the petitioner has been forcibly claiming her possession although the said land has been allotted to a school, which is running on the suit land. There is already an eviction proceeding against the petitioner interrupting her claim of possession. 6. Learned Addl. Govt. Advocate further submitted that there is delay of about two years in filing the appeal on the ground of poverty, which is not a proper ground to condone the delay because for a woman there is already State Legal Services Authority and High Court Legal Services Committee where elaborate provisions have been made for a woman or poor person having bona fide claim to prefer an appeal. For condoning delay, the appellant has to show sufficient reason for each day delay and taking a bald plea of poverty or womanhood in general cannot be a ground to condone such huge delay in filing Second Appeal. Hence, he submitted to reject the petition for limitation and consequently not to admit the appeal. DISCUSSIONS 7. Considered the submissions of the respective parties. Section 5 of the India Limitation Act,1963 states as follows : “5. Extension of prescribed period in certain cases – Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation -The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” 8. From the aforesaid provision, it is clear that the appeal can be admitted by condoning delay, but sufficient cause for such delay must be explained. The Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, (1987) 2 SCC 107 at paragraph-3 observed as follows : “3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. Katiji and others, (1987) 2 SCC 107 at paragraph-3 observed as follows : “3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 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 right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. 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.” 9. With due respect to the above provision, it appears that the aforesaid principle in extending liberal approach to condone delay should be borne in mind. So, the conduct of the parties must be weighed while considering the petition for condonation of delay. Also merit in the appeal apparent on the face of the record has to be judged, but there should not be any pre-judgment of the case while considering the petition under Section 5 of the Limitation Act. It is true that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred to, of course without prejudice to the right of the respondent to claim injustice due to non-deliberate delay. 10. In the present case, the petitioner has taken a plea that she is a woman and has no proper finance to prefer the Second Appeal in time. But it appears that the judgment was delivered by the learned appellate court on 22.8.2015, but she applied for the certified copy on 1.5.2017, which is long after lapse of the appeal period. Of course, she got the certified copy on 15.5.2017 and then she filed the appeal on 4.8.2017. The petition does not disclose that there is delay in obtaining the certified copy and the details about her poverty so as to disable her to approach the Court within the time limit. 11. The petition for condoning delay does not disclose about the source of income, her status and all other ancillary factors depriving her from filing the appeal in time. Moreover, under the provisions of Section 12 of the National Legal Services Authority Act, 1987 a woman is entitled to get free legal aid. 11. The petition for condoning delay does not disclose about the source of income, her status and all other ancillary factors depriving her from filing the appeal in time. Moreover, under the provisions of Section 12 of the National Legal Services Authority Act, 1987 a woman is entitled to get free legal aid. There is nothing mentioned in the petition for condonation of delay as to why the appellant being a woman could neither approach the State Legal Services Authority nor the High Court Legal Services Committee for filing appeal in time free of cost. Since each day of delay has not been explained and the ground of condoning delay is not convincing, it must be observed that there is no sufficient cause to condone the delay. 12. Moreover, the suit has been filed by the plaintiff claiming title basing on adverse possession over the suit land against the State Government and the Courts below have given concurrent finding dismissing the suit. It is reported in (2014) 1 SCC 669 (Gurdwara Sahib v. Gram Panchayat Village Sirthala and another), wherein Their Lordships have observed as follows: “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 13. With due regard to the aforesaid decisions, it can be only observed that prayer in the suit filed by the appellant seems to have no approval of principle of law. Moreover, when there is concurrent finding of fact by the Courts below about interference of appellant’s possession by State Government, the merit in appeal is at stake prima facie, of course same should be understood as prejudging of case on merit. 14. In terms of the above discussion, the Court is of the view that there is no sufficient cause to condone the delay of 623 days in preferring the Second Appeal. As such, the petition for limitation being devoid of merit, stands rejected. 15. In the result, the Second Appeal is not admitted being barred by limitation.