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2021 DIGILAW 785 (ALL)

Kanhaiya Lal v. State of U. P.

2021-08-03

AJAY BHANOT

body2021
JUDGMENT : AJAY BHANOT, J. 1. By the impugned order dated 27.01.2021, the learned appellate court/Additional District Magistrate (Judicial), Jhansi has rejected the application under Section 5 of the Limitation Act filed along with the memo of appeal and has accordingly found that the appeal was not maintainable. The appeal was filed under Section 67(5) of the Uttar Pradesh Revenue Code, 2006. 2. Sri. Vinod Kumar, learned counsel for the petitioner contends that the appeal of the petitioner has been rejected on grounds of delay. It is submitted that the delay was due to bona-fide reasons. The learned appellate authority took a highly technical view of the matter. It is further contended that the impugned order dated 27.01.2021 shows non application of mind. 3. Per contra, learned Standing Counsel for the State - respondents submits that the delay in filing the appeal was not liable to be condoned and the learned appellate authority rightly rejected the appeal. 4. Heard learned counsel for the parties. 5. The facts relevant from the adjudication of the controversy can be prised out from the impugned order. 6. The complete record is thus before this Court and no useful purpose will be served by exchange of pleadings and keeping this writ petition pending. 7. With consent of learned counsels for the parties, this writ petition is being decided finally. 8. The petitioner has meticulously explained the cause of delay in the delay condonation application. It has also been asserted that substantive rights of the petitioner are engaged in this controversy. The aforesaid facts have not been adverted to in the impugned order passed by the learned appellate court. 9. The Courts have consistently set their face against a pedantic approach in matters pertaining to condonation of delay, and insist on a justice oriented approach. 10. It would be apposite to predicate the narrative with good authority in point. The purpose of laws of limitation is to ensure that the parties remain vigilant to their causes and institute their claims in good time. The mandate of laws of limitation is not to shut the doors of justice to the parties or decline adjudication on merits. On the contrary it should be the constant endeavour of the courts and authorities to adjudicate issues on merits and dispense justice on a substantive basis. 11. The mandate of laws of limitation is not to shut the doors of justice to the parties or decline adjudication on merits. On the contrary it should be the constant endeavour of the courts and authorities to adjudicate issues on merits and dispense justice on a substantive basis. 11. There is good authority to hold that the courts and authorities should adopt a liberal, pragmatic and a justice oriented approach matters of condonation of delay. Equally a pedantic view should be avoided and servitude to procedure in such matters should be eschewed. 12. In Collector, Land Acquisition vs. Mst. Kati Ji and Others, 1987 (13) ALR 306 (SC) the Supreme Court took a liberal view of the phrase “sufficient cause” and held as follows: “The legislature has conferred the power to condone delay by enacting section 5 of the 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 of 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: 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 he decided on merit 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay. 5. The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not 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 restoring to delay. In fact, he runs a serious risk. 6. It must be gripped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 13. This view was fortified in N. Balakrishnan vs. M. Krishnamurthy, 1998 (7) SCC 123 : “The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy.” 14. Conduct and vigilance shown by a party are relevant criteria for consideration in an application seeking condonation of delay. In Shakuntala Devi Jain vs. Kuntal Kumari, AIR 1969 SC 575 it was held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 15. In Shakuntala Devi Jain vs. Kuntal Kumari, AIR 1969 SC 575 it was held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 15. The expression “sufficient cause” was liberally construed in New India Insurance Co. Ltd. vs. Smt. Shanti Misra, AIR 1976 SC 237 by holding that discretion given by section 5 should not be defined so as to convert a discretionary matter into a rigid rule of law. 16. The courts have to be mindful of the consequences of refusal to condone the delay leading to miscarriage of justice as held in O.P. Kathpalia vs. Lakhmir Singh, AIR 1984 SC 1744 . 17. The law set its face against an injustice-oriented approach while considering the applications for condonation of delay in Smt. Prabha vs. Ram Prakash Kalra, 1987 (Supp.) SCC 338. 18. A distinction between delay and inordinate delay was made in Vedabai @ Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil and Others, 2001 (44) ALR 577 (SC): “In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach....” 19. These holdings are particularly applicable in matters before revenue courts, where the litigants are mostly poor agriculturists, often uneducated and rarely alerted to their rights and technicalities of law. 20. The authorities in the preceding paragraphs are applicable to the facts of this case and shall also govern the fate of the decision. 21. The learned appellate court while passing the impugned order did not advert to the grounds for delay as pleaded in the delay condonation application. The appeal was dismissed in a cryptic manner with a simplicitor finding that the delay was not explained on a day to day basis. 22. The petitioner had stated the cause for the delay in the delay condonation application. The appeal was dismissed in a cryptic manner with a simplicitor finding that the delay was not explained on a day to day basis. 22. The petitioner had stated the cause for the delay in the delay condonation application. The delay was occasioned due to the fact that the petitioner was not informed about the order passed by the learned trial court by his counsel nor did he otherwise have knowledge of the same. The delay was not intentional as after getting knowledge of the award, the appeal was filed with promptitude. The petitioner has shown good and sufficient cause for condonation of delay. The conduct of the petitioner was bona-fide. The delay was liable to be condoned. 23. The impugned order shows non application of mind to the facts of the case in the record. The cases in point discussed in the preceding paragraphs are applicable to the facts of the case. The learned appellate court while rejecting the delay condonation application has acted contrary to the aforesaid settled authorities of law. 24. The learned appellate authority overlooked the fact that substantive rights of the petitioner are engaged in this controversy which need adjudication on merits in the interest of justice. 25. I find that the court below has taken a pedantic view of the matter which has led to a miscarriage of justice. 26. The order dated 27.01.2021 passed by the respondent No. 2 as well as the order dated 25.10.2018 passed by the respondent No. 3 are arbitrary and illegal. 27. The order dated 27.01.2021 passed by the respondent No. 2-Additional District Magistrate (Judicial), Jhansi as well as the order dated 25.10.2018 passed by the respondent No. 3/Assistant Collector, First Class/Tehsildar-Moth, District-Jhansi are liable to be set aside and are set aside. 28. The delay condonation application is liable to be allowed and is allowed. 29. The matter is remitted to respondent No. 2/appellate authority. 30. A writ in the nature of mandamus commanding the respondent No. 2/appellate authority to execute the following directions: The respondent No. 2/appellate authority shall decide the appeal on merits preferably in accordance with law within a period of four months from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 31. This order is being passed when the threat of Covid-19 pandemic still exists. In case the court proceedings are held up due to Covid-19 outbreak, the lost working days shall be adjusted and the stipulated period of one year shall accordingly be enhanced. 32. The writ petition is allowed to the extent indicated above.