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Madhya Pradesh High Court · body

2018 DIGILAW 612 (MP)

STATE OF M. P. v. SATYANARAYAN

2018-07-11

VIVEK RUSIA

body2018
JUDGMENT : Vivek Rusia, J. Heard on I.A.No.8734/2015 an application seeking condonation of delay. 2. The present appeal is filed under Section 43 Rule 1(t) of CPC against the order dated 15.03.2014 passed by the learned First Additional District Judge, Neemuch whereby an application under Section 41 Rule 19 read with Section 151 CPC has been dismissed. 3. The respondent filed a suit seeking declaration, permanent injunction and correction of record. Vide judgment and decree dated 17.05.2002 the suit had been decreed in favour of the plaintiff. Being aggrieved by the aforesaid judgment ad decree the State Government and the Naib Tehsilda, Tappa Ratangarh filed first appeal on 21.08.2002 vide order dated 15.06.2004. The learned Additional District Judge dismissed the said appeal for want of prosecution due to non appearance of appellant as well as his counsel. 4. After dismissal of the first appeal, the appellant/defendant filed an application under Order 41 Rule 19 read with Section 151 of CPC on 03.07.2007 alongwith an application under Section 5 of the Limitation Act. Vide order dated 15.03.2014 the learned Additional District Judge has rejected the application under Section 5 of the Limitation Act and also dismissed the appeal. Hence, the present appeal before this Court. 5. There is delay of 532 days in filing this miscellaneous appeal. Hence, the appellants have filed an application under Section 5 of the Limitation Act seeking condonation of delay. 6. According to the appellants, they received the information about dismissal of M.J.C.No.25/2012 on 13.11.2014. Application for certified copy had already been applied on 18.03.2014 and it was received on 05.11.2011. Thereafter, on 29.11.2014 the Collector sent a letter to the State Government seeking direction to file an appeal. Thereafter, various communications were made and reminders were sent. Finally the Law Department granted approval on 05.08.2015 and then the appeal was filed on 28.11.2015. 7. After notice, the respondent filed reply to the aforesaid application by submitting that the appellants have failed to explain the delay of each day in their application and therefore the same cannot be condoned. 8. Heard the learned counsel for the parties. 9. The certified copy of the order dated 15.03.2014 is available on record of this appeal which shows that the appellants applied for certified copy on 11.12.2014 which was received on the same date. 8. Heard the learned counsel for the parties. 9. The certified copy of the order dated 15.03.2014 is available on record of this appeal which shows that the appellants applied for certified copy on 11.12.2014 which was received on the same date. It means the appellants applied for the certified copy after eight months and by that time the period of limitation had already been expired. There is no explanation as to why there was a delay in applying for the certified copy. There is also no explanation as to how they received information on 13.11.2014 about dismissal of appeal and who was responsible for such delay. The Naib Tehsildar was appellant no.2, in the appeal, therefore it was his responsibility to apply for the certified copy and sent the record to the Collector for obtaining the permission. Even otherwise, by order dated 15.06.2004, the learned Additional District Judge dismissed the appeal by observing that the learned Government Advocate was not appearing and thereafter information was sent to the Collector alongwith the order sheet dated 21.04.2004 and despite that no one is appearing before the Court. The appellants filed an application under Order 41 Rule 19 CPC after a period of three years and that was dismissed on the ground of delay. Despite dismissal of MJC due to delay the appellants have not learnt the lesson and again caused delay in filing this appeal also. It seems they are not serious about the issue but merely filed MJC and now filed this appeal to complete the formalities. 10. As per Section 5 of the Limitation Act, litigant is required to explain the delay of each and every date. The application has been filed in very casual manner. In the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157 , the Apex Court has considered the scope of section 5 of the Limitation Act in the cases where the State and its agencies /instrumentalities are party. The Apex Court has held that 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. Para nos. 19 to 26 are reproduced below: 19. The Apex Court has held that 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. Para nos. 19 to 26 are reproduced below: 19. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556 , this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that; "6 the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. 20. In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 , the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. 21. In State of Nagaland v. Lipok AO (supra), the Court referred to several precedents on the subject and observed that the proof of sufficient cause is a condition precedent for exercise of discretion vested in the Court. "8 .... What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion." 22. The Court also took cognizance of the usual bureaucratic delays which takes place in the functioning of the State and its agencies/i instrumentalities and observed: "13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. " 23. What needs to be emphasised 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. 24. 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. 25. 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. 26. 26. In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months delay was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise of power under Section 5 of the Limitation Act." 11. Therefore, in view of the above, the present appeal deserves to be and is, hereby, dismissed on the ground of delay and latches.