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2019 DIGILAW 779 (PNJ)

Gurbachan Kaur v. Union Of India

2019-03-11

RAVI RANJAN

body2019
JUDGMENT Ravi Ranjan, J. - CM-11017-CII-2018 Heard learned counsel for the parties. 2. This order will dispose of CM No.11017-CII-2018 filed by the applicants-appellants under Section 5 of the Limitation Act. 1963 seeking condonation of delay of about 173 days which has occurred in preferring this appeal. 3. Reply has been filed on behalf of the respondent-Union of India in which the only objection has been raised on the question of law, i.e., the power of High Court to condone the delay. Whereas no specific reply has been filed on merit rather a vague reply has been filed that the contents of the application for condonation of delay of 173 days in filing the appeal are wrong and, thus, are denied. 4. However, before taking a decision on merit regarding the condonation of delay, the question of law having been raised by the learned counsel would have to be answered first. 5. The respondent-railways has raised the issue specifically in paragraph Nos. 4 to 9 of the reply. It is stated that the provision of appeal available under section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as 'the Act') provides that an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal if preferred within a period of 90 days from the date of the order appealed against. It is contended that it specifically bars the condonation of delay as there is no provision for the same. In view of the language provided under Section 23 of the Act, it has to be understood that the appeal, if not preferred within a period of 90 days, the same cannot be entertained by the High Court. 6. Learned counsel for the respondent-Union of India, in support of the aforesaid submission, places reliance upon a decision rendered by learned Single Judge Bench of Gauhati High Court in the case of 'Union of India vs. Md. Jasiruddin Talukdar', 2012 ACJ 1745 . 7. 6. Learned counsel for the respondent-Union of India, in support of the aforesaid submission, places reliance upon a decision rendered by learned Single Judge Bench of Gauhati High Court in the case of 'Union of India vs. Md. Jasiruddin Talukdar', 2012 ACJ 1745 . 7. In the aforesaid judgment, a view has been taken by the learned Single Judge that Railway Claims Tribunal Act, 1987 being a special Tribunal constituted under a special statute, power to condone delay must flow from the statute itself as Section 29(2) of the Limitation Act would not be applicable and, thus, High Court cannot extend period of limitation by invoking provisions of Section 5 of the Limitation Act or even read with under Order XLI, Rule 3A of Civil Procedure Code(hereinafter referred to as 'CPC') as the aforesaid Order XLI, Rule 3A of CPC provides for a procedure to file appeal after expiry of period of limitation but it does not confer any power to condone the delay. 8. Per contra, learned counsel for the applicants-appellants has placed reliance upon a Division Bench Judgment rendered by Patna High Court in the case of 'Rashmi Devi vs. The Union of India' passed in Miscellaneous Appeal No.118 of 2013, dated 19.12.2016 as well as another Division Bench decision rendered by Madya Pradesh High Court in the case of 'Kapil and others vs. Union of India and others' 2017 ACJ 2472 . 9. Patna High Court has placed reliance upon a Division Bench decision of Gujarat High Court in the matter of 'Union of India vs. Gujarat State Electricity Corporation Limited' [Civil Application (for condonation of delay) No.12844 of 2015 in First Appeal (Stamp Number) No.2264 of 2015), decided on 21.10.2016]. 10. For better appreciation, the relevant finding of the Judgment of Gujarat High Court, is extracted and quoted as under:- "14. Against this backdrop of the provision of law, it seems that learned counsel for the applicant is justified in contending that non mentioning of the delay condonation power under Section 23 and mentioning of the same under Section 17, would not be construed as express exclusion of the said power so as to exclude the provision of the Limitation Act from its applicability to the case, as the observations of the Supreme Court in case of Hukumdev Narain Yadav (supra) of course cannot be said to be laying down so absolute a proposition of law. On the contrary, even in Hukumdev Narain Yadav (supra) also the Supreme Court did say that the Court has to examine the scheme of the Act for coming to the conclusion as to whether the provisions of Limitation Act are excluded or not? 16. In the instant case, the very provision for condonation of delay, as provided under Section 17, would militated against the Act and the scheme of the Act being construed as excluding the limitation provision, as the legislature has in fact provided delay condonation power in Section 17 itself. The same power need not be provided so far as Section 23 is concerned as it pertains the appeal to be led before High Court and High Court being Court, the provision of Section 29(2) would get attracted. Therefore, there was no requirement of providing specific power for condoning delay. The legislature, if at all, wanted to exclude the power in the High Court for condoning delay in filing of appeal, then legislature would have by way of express provision excluded the same. With profound respect to the High Court of Gauhati and High Court of Madhya Pradesh, this Court is unable to accept the proposition that the provision of the Act and the scheme based upon its object and reason, could be said to be one in which the provisions of Limitation Act appears to have been excluded. On the contrary, the provision of Section 17 expressly contains delay condonation power without there being any outer limit in the Tribunal and hence Tribunal, in the instant case, have even condoned delay on the part of the claimant of 13 years and 6 months. If this power is there under Section 17 to condone delay of any number of years, then absence of condonation power under Section 23 cannot be read as express exclusion by the legislature. 20. In view of this, we are of the considered view that the provisions of Limitation Act are applicable and therefore, the delay is sufficiently explained, as the respondents have failed in pointing out how and in what manner the cause of action is said to have been given up the applicant and therefore, sufficient cause is made out to condone the delay. Hence, the delay is condoned. Applications are allowed. Rule is made absolute to the aforesaid extent." 11. Hence, the delay is condoned. Applications are allowed. Rule is made absolute to the aforesaid extent." 11. From the perusal of the aforesaid passage, it would be apparent that the Gujarat High Court has held that so far as the Tribunal is concerned, the power to condone the delay in filing of the claim application has been provided under Section 17 of the Act itself, therefore, the same power is not required to be provided under Section 23 of the Act as it pertains to appeal before the High Court, thus, in such a circumstance, provision of Section 29 (2) of the Act would get attracted. Therefore, there was no requirement of providing specific power for condoning the delay. Had it been the will of legislature to exclude the Power of the High Court for condoning the delay in preferring the appeal, then the same could have been done by express provision. 12. Accordingly, differing from the decisions of the learned Single Bench of Gauhati High Court and Madya Pradesh High, the Gujarat High Court has held that it is unable to accept the proposition that the provision of Act and the Scheme based upon its object and reason, could be said to be one in which the provisions of Limitation Act appears to have been excluded. 13. Apart from the above, the Division Bench of Patna High Court has itself examined the provisions and has held that Sub Section (3) of Section 23 of the Act contemplates limitation to file an appeal but merely because there is no specific power conferred on the Appellate Court to condone the delay, it cannot be inferred that the High Court does not have power to condone it. It has come to the conclusion that the procedure of filing appeal as provided under Civil Procedure Code would be applicable in the appeals to be preferred before the High Court in view of section 141 of CPC. Therefore, the Limitation Act would be applicable to the Civil Court. Thus, in the absence of any prohibition in the Act against condonation of delay, the High Court being Appellate Court would have power to condone the same. 14. The matter also came to be considered by Division Bench of Madya Pradesh High Court. Therefore, the Limitation Act would be applicable to the Civil Court. Thus, in the absence of any prohibition in the Act against condonation of delay, the High Court being Appellate Court would have power to condone the same. 14. The matter also came to be considered by Division Bench of Madya Pradesh High Court. The Division Bench has placed reliance upon a decision of Hon'ble Apex Court rendered in 'Union of India vs. Prabhakaran Vijaya Kumar and others', (2008) 9 SCC 527 in particular the paragraph Nos. 12 to 14 of the said judgment. The Supreme Court has come to the conclusion that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred meaning thereby that beneficial or welfare statutes should be given a liberal and not literal or strict interpretation. 15. The Division Bench of Madya Pradesh High Court has opined that taking aforesaid clue from the law laid down by the Supreme Court, it has to be held that, the provisions of Claims Tribunal Act being undisputedly a benevolent, beneficial social welfare legislation and has been enacted for the benefit of claimants, it would not be permissible or possible to interpret such a beneficial and benevolent legislation restrictively. On the contrary, by adopting the principles of purposive construction, the provisions would have to be interpreted in a manner that would not exclude or non suit genuine claimants specially in cases where they have been prevented by bona fide and sufficient reasons to file an appeal before the High Court within limitation. 16. So far as the provisions of section 29(2) of the Limitation Act, 1963 are concerned, the Division Bench has held that it would be writ large from the language of the aforesaid that the provisions of Section 4 to 24 of the Limitation Act would automatically be included in the provisions of special or local law unless and until they are expressly excluded. 17. 17. Being respectfully in full agreement with the aforesaid views expressed by Patna High Court and Madya Pradesh High Court, this Court would also hold that the provisions of Limitation Act is applicable only to the Courts and the Appellate Forum under Section 23 of the Act being High Court can definitely be held to be a Court, thus, the provisions of Section 4 to 24 of the Limitation Act by virtue of Section 29(2) of the Limitation Act would be applicable and the High Court would have power to extend the period of limitation in a given case. 18. Now, coming to the grounds taken by the applicants-appellants in the application for the condoning the delay, it is stated that the mistake was on the part of the office of the learned counsel as the records were mixed up with certain other records of his office as a result of which, the appeal could not be filed within time. When the parties contacted their counsel for status of their appeal only, then it transpired that the appeal could not be filed inadvertently. Thereafter, paper were located and the appeal was filed. 19. Though, there is general denial by the respondent-Union of India but there is no specific averments regarding the same in the reply save and except that the contents are wrong and denied. 20. Having regard to the facts and circumstance of the case, this Court would hold that the applicants-appellants were prevented from sufficient cause in preferring this appeal within time. 21. In the result, this application is allowed and delay of 173 days in preferring the present appeal, is hereby condoned.