Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 267 (GAU)

Union of India v. Ralkapthanga, S/o. Rangkhuma(L)

2022-03-15

NELSON SAILO

body2022
JUDGMENT : Heard Ms. Zairemsangpuii, learned CGC for the applicants and Mr. A.R. Malhotra, learned counsel for the respondent No. 1. Also heard Mr. C. Zoramchhana, learned Addl. Advocate General, Mizoram for the Proforma respondents. 2. By filing this application, the applicants seek condonation of 415 days delay in preferring the connected appeal against the Judgment & Decree dated 07.03.2018 passed by the learned Senior Civil Judge-III, Aizawl Judicial District, Aizawl in Civil Suit No. 5/2015. 3. Ms. Zairemsangpuii, learned CGC submits that the Judgment & Order was passed by the learned Trial Court on 07.03.2018 and a certified copy of the same was applied for on 16.03.2018. However, the certified copy become available for delivery to the applicants only on 20.07.2018 after more than 4 (four) months from the date of its application. On receiving the certified copy, the applicants took about 185 days for obtaining legal opinion and thereafter, 50 days time was spent to bring the entire records from the Headquarter for obtaining the opinion of the then Assistant Solicitor General of India. By the time, the consultation process and the preparation of the appeal was finalized, a delay of 415 days had occurred. She submits that as the delay has occasioned due to bona fide reasons, the same may be condoned. She also submits that even on merit, the applicants have a good case and they have every chance of succeeding in the appeal. She further submits that the issue involved in the appeal, in fact, is connected with another matter, which is under consideration by the State authorities on the basis of the direction given by this Court in a writ petition. Therefore, the outcome of such consideration may also be taken into account to consider the present application. As such, Court may condone the delay in filing the appeal otherwise, the applicants will face great hardship and loss. In support of her submission, the learned CGC refers to the case of State of Haryana vs. Chandra Mani & Ors., (1996) 3 SCC 132 . 4. Mr. A.R Malhotra, learned counsel for the private respondent, on the other hand, submits that the application itself in fact is not maintainable because the deponent who has sworn the affidavit attached to the application is not the authorized person to swear the affidavit. 4. Mr. A.R Malhotra, learned counsel for the private respondent, on the other hand, submits that the application itself in fact is not maintainable because the deponent who has sworn the affidavit attached to the application is not the authorized person to swear the affidavit. He submits that the deponent has stated that he is the applicant in the Interlocutory Application but the Cause Title of the application clearly shows that the deponent is not the applicant. He submits that although the learned CGC has relied upon a notification issued by the Ministry of Law, Justice and Company Affairs, Department of Legal Affairs dated 16.09.1998 to show that the deponent who sworn the affidavit is the authorized officer to swear the affidavit but the fact remains that, he is authorized to swear affidavit, etc on behalf of Border Roads Development Board and not on behalf of the Union of India, Ministry of Shipping and Surface Transport. He submits that this question has already been answered by this Court in CM Appln. No. 108/2012 A/o RFA No. 42/2012 (Union of India vs. Sh. K. Rozara & Ors.), vide Order dated 21.11.2012. Therefore, the application is clearly not maintainable on this ground. 5. The learned counsel further submits that a bare perusal of the application would go to show that the applicants have been most casual not only in preparing the application but also in pursuing their case before and after the Civil Suit was decided by the Lower Court. He submits that a bare perusal of the impugned judgment & decree would go to show that the applicants were given enough opportunities to file their written statement and to cross-examine the plaintiff witnesses. Despite the same, they failed to take necessary steps as would be required for them to defend their case. He submits that the applicants have also withheld the actual facts from the Court. He submits that after the chance to file written statement was closed by the Trial Court on 11.12.2015, the applicants filed an application i.e., I.A No. 96/2016 for recalling the same before the same Court which however was declined vide Order dated 08.02.2017. He submits that the applicants have also withheld the actual facts from the Court. He submits that after the chance to file written statement was closed by the Trial Court on 11.12.2015, the applicants filed an application i.e., I.A No. 96/2016 for recalling the same before the same Court which however was declined vide Order dated 08.02.2017. Thereafter, they approached the High Court through CRP No. 14/2017 against the order of rejection to recall the order closing the opportunity to file written statement but during the pendency of the petition, the impugned judgment & decree came to be passed and therefore, their petition became infructuous and was accordingly disposed as infructuous on 15.03.2018. These facts however has not been disclosed by the applicants in their application and therefore it amounts to causing fraud to the Court. In support of his submission, the learned counsel has relied upon the case of State of Andhra Pradesh & Anr. vs. T. Suryachandra Rao, (2005) 6 SCC 149 . 6. Mr. A.R Malhotra, learned counsel further submits that it is clear from the impugned judgment & decree that enough opportunity was granted to the applicants to defend their case and what was recorded in the judgment & decree cannot be questioned or controverted by the applicants through the instant application. In this connection, he relies upon the case of State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr., (1982) 2 SCC 463 . 7. The learned counsel also submits that merely because the applicant seeking condonation of delay is the Government, no exception can be made. In fact, the Government bodies, their agencies and instrumentalities have to establish with acceptable explanation that there was bona fide effort not to delay the matter. However, the same has not been demonstrated by the instant applicants and therefore, no case for condoning the delay has been made out by the applicants. In support of his submission, he relies upon the Apex Court’s Judgment dated 15.10.2020 passed in SLP(C) Diary No. 9217/2020 (The State of Madhya Pradesh & Ors. vs. Bherulal) and the Order dated 18.12.2020 of the Apex Court passed in SLP(C) Diary No. 19059/2020 ( Dy. Conservator of Forests vs. Timblo Irmaos Ltd. & Ors.) The learned counsel thus submits that under the facts and circumstances, the delay may not be condoned and the application should be dismissed. 8. Mr. vs. Bherulal) and the Order dated 18.12.2020 of the Apex Court passed in SLP(C) Diary No. 19059/2020 ( Dy. Conservator of Forests vs. Timblo Irmaos Ltd. & Ors.) The learned counsel thus submits that under the facts and circumstances, the delay may not be condoned and the application should be dismissed. 8. Mr. C. Zoramchhana, learned CGC appearing for Proforma respondents submits that he adopts the arguments advanced by Mr. A.R Malhotra and that on the basis of the facts and circumstances, Court may pass appropriate orders as it deems fit. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. It may be noticed that at a certain points of time, there was a submission made before the Court that according to the Registry, the delay in filing the appeal is 421 days and not 415 days. Accordingly, as prayed for on behalf of the applicants, time was granted for filing additional affidavit. The additional affidavit was thereafter filed on 09.03.2021 but from a perusal of the same, it is seen that the explanation for the delay according to the applicants should be only for 415 days. In other words, the delay of 415 days has been reiterated by the applicants. 11. Coming to the explanation tendered by the applicants in their application, it would be gainful if paragraph no. 7 is of the application is abstracted hereunder:- “7. That the applicant being aggrieved by the above order decided to file an appeal before the Hon’ble Court praying to set aside and quash the same. But the appellant authority upon receipt of the order dated 07.03.2018 on 20/07/2018 the appellant authority after consulting with their officials decided to file an appeal as they were aggrieved by the order dated 07.03.2018 and after 415 days decided to file appeal and at that time as such the appellant authority on approaching the learned counsel had to wait for another 185 days to obtain legal opinion as they required some time to go through the papers. The concerned advocate sought for all the records to examine it and the appellant authority took 50 days to bring the whole record from the headquarter, again to prepare the draft after going through the record it took another 50 days time by the learned counsel and again the same was sent for vetting which again took 12 days to finalize it and after finalization, the learned counsel took 118 days incorporate the correction and to file it. Due to the above reasons the delay of 415 days has occurred in filing this appeal before this Hon’ble Court.” 12. From the above abstract, it may be seen that a certified copy of the judgment & decree of the Trial Court applied for by the applicants was made available only on 20.07.2018. Thereafter, according to the applicants, after consulting their legal counsel or obtaining legal opinion, they have decided to file an appeal before the High Court. The explanation given as may be noticed does not contain any specific dates on which such decision was taken and on which date, communications were made between the applicants themselves and their appointed counsels. It may also be seen that the number of days computed has also been written by hand over the blank space kept in the midst of the statements in the application. Although, the learned CGC submits that the same was done with the permission of the Court but the facts remains that by leaving blank spaces the applicants have only demonstrated that they are not sure as to how the case was dealt with after the Trial Court passed the impugned judgment & decree. The Apex Court in the State of Madhya Pradesh & Ors. vs. Bherulal (supra) in the given facts of that case had observed that mentioning of various dates without proper explanation of the delay will not be acceptable. In the present case, even the applicants are unable to give any dates except the date on which the certified copy was made available to them. The Apex Court in State of Haryana vs. Chandra Mani & Ors. (supra) by examining various decisions of the same Court had observed that a pragmatic approach should be taken on delay and that Court should not insist on day to day explanation of the delay. The Apex Court in State of Haryana vs. Chandra Mani & Ors. (supra) by examining various decisions of the same Court had observed that a pragmatic approach should be taken on delay and that Court should not insist on day to day explanation of the delay. The Apex Court further held that Court should decide the matter on merit unless the case is hopelessly without merit. However, in the given facts of the present case, a perusal of the impugned judgment & decree sought to be challenged by the applicants would clearly demonstrate that the applicants have been negligent throughout the entire proceedings even as the suit was pending disposal. Therefore, the case relied upon in my considered view will not be applicable to the facts of the present case. As already mentioned herein above, the Apex Court in State of Madhya Pradesh & Ors. vs. Bherulal (supra) has observed that the Government Departments, in particular, are under a special obligation to ensure that they perform their duties with diligent and commitment. Condonation of delay is an exception and should not be used as anticipated benefit by such organizations. 13. From what has been stated above, this Court is of the considered opinion that the applicants have not made out a case for condoning the delay and in the result, the application is dismissed.