Rajasthan High Court - Jaipur
Urban Improvement Trust vs Poonam Chand on 3 February, 1997
Equivalent citations: AIR1997RAJ134, 1997(2)WLC430, 1997(1)WLN432
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. This is defendants' second appeal filed by the Urban Improvement Trust, Jodhpur as well as Tehsildar, Urban Improvement Trust, Jodhpur against the judgment and decree dated 8-12-1995 passed by the learned Additional District Judge, No. 3, Jodhpur in Civil Appeal No. 24 of 1994 whereby he refused to condone the delay under Section 5 of the Indian Limitation Act and dismissed the appeal on the ground of limitation.
2. Brief facts necessary for disposal of the instant second appeal are that plaintiff-respondent Poonam Chand filed a Civil Suit No. 138/94 for permanent injunction over the disputed land measuring 6825 Square Yards situated in city of Jodhpur. The aforesaid suit was decreed by the learned trial Court on 12-9-94 but as the counsel engaged on behalf of the defendant-appellants did not inform about the judgment and decree dated 12-9-94 passed by the learned trial Court, therefore, an appeal could not be filed by the defendant-appellants within limitation.
3. After getting information about the judgment and decree dated 12-9-94, the defendant-appellants applied for certified copies of judgment and decree of the learned trial Court with promptitude and filed the appeal along with application under Section 5 of the Indian Limitation Act supported with an affidavit on 5-5-95. It is also averred in the aforesaid application for condonation of delay that the defendant-appellants were informed by Smt. Manju Maheshwari, Advocate about the judgment and decree dated 12-9-94 on 2-5-95.
4. It is alleged in paragraph 8 of the application moved under Section 5 of the Indian Limitation Act that due to misconduct of the counsel engaged by the defendant-appellants, they are going to be deprived of 6825 Square Yards land situated in city of Jodhpur, valuation of which is more than Rs. One Crore. In the aforesaid application, the defendant-appellants have also alleged that the decree obtained by the plaintiff-respondent from the learned trial Court on 12-9-94 is per se illegal and without jurisdiction in view of the mandatory provisions envisaged under Clause (c) of Sub-section (1) of Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act of 1976').
5. The aforesaid application moved under Section 5 of the Indian Limitation Act was opposed by the plaintiff-respondent on the ground, inter alia, that both the counsel namely, Shri Basant Raj Mehta and Shri Ram Vilas are senior counsel at the Bapand well-versed with law and as such no misconducts are attributable to them. It is also averred that the defendant-appellants ought to have been vigilant about filing of the appeal within limitation.
6. After hearing learned counsel for the parties, learned lower appellate Court came to the conclusion that since learned counsel engaged on behalf of the defendant-appellants had not filed any affidavit in support qf the application moved under Section 5 of the Indian Limitation Act, and the explanation relating to inordinate delay of seven months, was hot satisfactorily explained, therefore, the application under Section 5 of the Indian Limitation Act was rejected and appeal was dismissed as barred by lapse of time.
7. Aggrieved against the aforesaid rejection of the application under Section 5 of the Indian Limitation Act and dismissal of the appeal as not maintainable, the present second appeal has been filed.
8. With the consent of the learned counsel for the parties, on 8-1-87, it was directed to list this second appeal for final disposal at admission stage.
9. Heard the learned counsel for the parties.
10. Perused judgments and decree under appeal.
11. It is a unique case where learned counsel appearing for both the parties are placing reliance on a decision rendered by me in case of State of Rajasthan v. Hema Ram, reported in 1996 All India High Court Cases 4498 with equal vehemence. Learned counsel for the defendant-appellants is placing reliance on paragraphs 15 and 32 of my judgment rendered in case of Hema Ram (supra) whereas learned counsel for the plaintiff-respondent is placing reliance on paragraph 39 wherein I refused to condone the delay after having a glance on the merit of that case.
12. Looking into the facts and circumstances of the present case together with arguments advanced by learned counsel for the parties, I consider it just and proper to quote paragraphs 15, 32 and 39 from the judgment of Hema Ram (1996 AIHC 4498) (supra), which read thus:--
"15. From the conjoined reading of paras 7 and 8 of their Lordships decision rendered in the case of G. Ramegowda (supra), the following legal principles are required to be kept in view while condoning the delay or passing an order refusing to condone the delay:--
(a) If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel, there is no reason why the opposite party should be exposed to a time-barred appeal. Thus, it is well to remember that once an appeal has become time-barfed, a vested right accrued in favour of the opposite party cannot be divested from his vested right if negligence, deliberate or gross inaction or lack of bona fides on the part of the appellant is either proved or shown.
(b) Each case will have to be considered on the particularities of its own special facts.
(c) The expression 'sufficient cause' used in Section 5 must receive a liberal construction by a Court of law so as to advance substantial justice between the parties.
(d) "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." (See AIR 1987 SC 1353).
(e) "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". (See AIR 1987 SC 1353).
(f) The decisions of Government are Collective and institutional decision and do not share the characteristic of decisions of private individuals, therefore, it must be kept in view that if an appeal is preferred by the Government is lost for such default no person is individually affected but in ultimate analysis public interest is bound to suffer.
(g) The law of limitation is the same for private citizens as for governmental authorities.
(h) Where Government makes a case where public interest was proved or shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it a certain amount of latitude is permissible.
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32. In my humble opinion, if an aggrieved party failed to file a regular appeal against the order impugned within limitation a vested right accrued to the opposite party and there is no reason why the opposite party should be exposed to a time-barred appeal unless of course the appellant satisfied this Court in a bona fide manner about compelling 'sufficient cause' under Section 5 of the Indian Limitation Act which can said to be beyond his/her/its control. Though it is true that expression 'sufficient cause' in the aforesaid Section is liable to receive a liberal construction. According to the aforesaid decision rendered by the Apex Court wherever and whenever an appeal is filed which is found to be time-barred the approach of a Court of law should require to be justice-oriented. In my humble opinion, in order to make justice-oriented approach in such a situation merit should also be taken as one of the relevant considerations for allowing or rejecting an application under Section 5 of the Indian Limitation Act.
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39. The aforementioned discussion leads towards an irresistible conclusion that the present time-barred appeal has been filed along with an application under Section 5 of the Indian Limitation Act to delay the payment of legal compensation to the landholder Hema Ram which is impermissible. The State Government cannot claim to have a vested right to delay the payment of compensation to the land-holder Hema Ram of his land acquired by the State Government for the benefit of Union of India, Ministry of Defence which appellant has already received from Government of India. In such a situation, there is no reason whatsoever why the respondent Hema Ram should be exposed to the present time-barred appeal."
13. It is be noticed that in case of Hema Ram (1996 AIHC 4498) (supra), an appeal was filed by the State Government whereas the present appeal has been filed by its instrumentality. A moot question arises in the present case whether the principle of condonation of delay under Section 5 of the Limitation Act would be same in an appeal filed by an instrumentality of the State? Suffice it to hold in this regard that same principle for condonation of delay would apply in an appeal filed by an instrumentality of the State and an argument contrary to it is not acceptable.
14. Apart from the facts and circumstances discussed above, much water has run under the bridge after decision of the Apex Court in case of State of Haryana v. Chandra Mani, reported in 1996 (3) JT (SC) 371 : (AIR 1996 SC 1623), where delay of 109 days in filing of Letters Patent Appeal by the State of Haryana before the High Court of Punjab and Haryana was not condoned. The Apex Court set aside the judgment of the High Court and condoned the delay holding that the State cannot be put on the same footing as an individual. Their Lordships further ruled that the expression "sufficient cause" used under Section 5 of the Indian Limitation Act should be considered with pragmatic justice-oriented approach rather than on technical ground. In case of Chandra Mani (AIR 1996 SC 1623) (supra), their Lordships after surveying the previous decisions of the Apex Court on the subject uptill date specifically ruled in paragraph 11, which reads thus:--
"11. It is notorious and common knowledge that delay in more than 60 per cent, of the cases filed in this Court -- be it by private party or the State -- are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It, is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the file from table to table, and keeping it on table for considerable time causing delay --intentional or otherwise -- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather, than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic apporach in justice-oriented process. The Court should decide the matter on merits unless the case is hopelessly without merit..... .....
15. Now time is ripe to put a glance on the merit of the case on hand. A close scrutiny of the judgment and decree under appeal leads me to conclude that while rejecting the application under Section 5 of the Indian Limitation Act, the learned lower appellate Court has not addressed itself to the merit of the case.
16. Indisputably, the disputed land over which the plaintiff-respondent Poonam Chand has obtained a decree under appeal from the learned trial Court on 12-9-1994 is measuring 6825 Square Yards in the city of Jodhpur, which falls within the category 'C' of Schedule 'I' appended to the Act of 1976. It is further to be noticed that under Clause (c) of sub-section of Section 4 of the Act of 1976, the plaintiff-respondent is not entitled to possess land in an urban agglomeration falling within category 'C' specified in Schedule 'I' of the said Act more than 1500 Square metres.
17. In the present case, the aforesaid factual and legal position was sufficient to condone the delay under Section 5 of the Indian Limitation Act and to decide the appeal on merits. If learned lower appellate Court would have put a glance on the merit of the case as stated in the preceding paragraph, it would have never arrived at a conclusion by any stretch of imagination that the appeal filed by the defendant-appellants before it was hopelessly devoid of merit.
18. In my considered opinion, the controversy involved in the present case is squarely covered by the decision rendered by the Apex Court in case of Chandra Mani (AIR 1996, SC 1623) (supra), therefore, seven months' delay in filing the appeal before the learned lower appellate Court deserves to be condoned. The Urban Improvement Trust, Jodhpur being instrumentality of the State is entitled for all the benefits which the State is entitled to receive while interpreting the expression "sufficient cause" used under Section 5 of the Indian Limitation Act.
19. Now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Indian Limitation Act and dismissing appeals as barred by lapse of time, the Courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits ordinarily efforts should be made to decide the appeals on merits. Failure to do so in the present appeal by learned lower appellate Court has resulted in miscarriage of justice and as such, its judgment and decree under appeal is liable to be set aside.
In view of what have been discussed above, the instant Second Appeal is allowed and judgment and decree dated 8-12-1995 passed by learned lower appellate Court is hereby set aside. The case is remanded back to the learned lower appellate Court with a direction to decide the appeal afresh expeditiously on merits without being influenced with any observation made in the body of the judgment relating to the merits of the case.
20. Costs easy.