Himachal Pradesh High Court
Smt. Bakhshish Kaur Sarkaria vs Smt. Murtoo Devi And Others on 4 October, 2016
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 169 of 2014 .
Reserved on: 26.09.2016
Decided on: 4.10.2016
Smt. Bakhshish Kaur Sarkaria ...Appellant.
of
Versus
Smt. Murtoo Devi and others ...Respondents.
rt
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Ajay Kumar, Senior Advocate, with Mr. Dheeraj K. Vashisht, Advocate.
For the respondents: Mr. Bhupender Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate, for respondents No. 1 to 8.
Mr. Romesh Verma & Mr. Varun Chandel, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondent No. 9. ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 2 Mansoor Ahmad Mir, Chief Justice.
This Letters Patent Appeal is directed against .
judgment and order, dated 28th July, 2014, made by the learned Single Judge/Writ Court in CWP No. 1232 of 2009, titled as Smt. Murtoo Devi and others versus Financial of Commissioner (Appeals) and another, whereby the writ petition filed by private respondents herein came to be rt allowed and order, dated 23rd July, 2008, made by the Financial Commissioner (Appeals), i.e. respondent No. 9, in revision petition filed by the appellant was set aside (for short "the impugned judgment").
2. The appellant and private respondents are in litigation right from 15th May, 1993, which was outcome of the entries made in the revenue record by the then revenue officials. The private respondents filed a suit in terms of the mandate of Section 58 (3) (e) of the H.P. Tenancy and Land Reforms Act, 1972 (for short "the Act") before the Assistant Collector 1st GradecumLand Reforms Officer, Tehsil Kasauli, District Solan, H.P. (for short "Assistant Collector") ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 3 against the appellant, which was decreed vide order, dated 3rd March, 1997 (Annexure P1 annexed with the writ .
petition), constraining the appellant to file appeal (Annexure P2 annexed with the writ petition) before the District Collector, Solan, alongwith an application for of condonation of delay (Annexure P3 annexed with the writ petition). The application for condonation of delay was rt dismissed and consequently, the appeal was dismissed as time barred vide order, dated 25th September, 2001 (Annexure P5 annexed with the writ petition). Feeling aggrieved by the said order, the appellant filed revision petition before the Financial Commissioner (Appeals), which was allowed on 18th October, 2005 and the orders made by the Assistant Collector and the District Collector came to be set aside.
3. Being dissatisfied by the order made by the Financial Commissioner (Appeals), the private respondents invoked the jurisdiction of this Court by the medium of CWP No. 1222 of 2005, titled as Smt. Murtu Devi & others versus ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 4 Smt. Bakshish Kaur, which was allowed vide order, dated 30th November, 2007 (Annexure P6 annexed with the writ .
petition), order, dated 18th October, 2005, made by the Financial Commissioner (Appeals) came to be quashed and set aside, the Financial Commissioner (Appeals) was of directed to decide the revision afresh in accordance with law and the parties were directed to appear before him on 12 th rt December, 2007. It is apt to reproduce the operative portion of the judgment in CWP No. 1222 of 2005 herein:
"Consequently, in view of the observations made herein above, the writ petition is allowed. The order dated 18.10.2005 is quashed and set aside. The matter is remanded back to the Financial Commissioner (Appeals) to decide the revision afresh in accordance with law. To avoid delay, the parties are directed to appear before the Financial Commissioner (Appeals) on 12.12.2007."
4. Appellant questioned the judgment made by the Writ Court in CWP No. 1222 of 2005 by the medium of LPA No. 4 of 2008, titled as Smt. Bakshish Kaur versus Smt. Murtu Devi and others, which came to be disposed of vide order, dated 4th April, 2008 (Annexure P7 annexed with the writ petition) with a direction to the Financial ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 5 Commissioner (Appeals) to decide the revision petition within a period of six months from the date of production of .
the certified copy of the said order before him.
5. Parties appeared before the Financial Commissioner (Appeals), who, after hearing the parties, of allowed the revision petition, set aside the order of the District Collector and condoned the delay vide order, dated rt 23rd July, 2008 (Annexure P8 annexed with the writ petition), with a direction to the Collector to decide the appeal on merits after giving opportunity to both sides. It is apt to reproduce operative portion of the said order herein:
"The ratio of the law laid down by the Hon'ble Apex Court as reproduced above is therefore applicable to this case and it would be in the interest of justice, equity and fairplay to condone the delay. I therefore allow the revision and condone the delay. The matter is remanded to the Collector to hear/decide the same on merits after giving opportunity to both sides."
6. The private respondents questioned the said order by the medium of CWP No. 1232 of 2009, which came to be allowed by the Writ Court and the order of the Financial Commissioner (Appeals) was set aside vide ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 6 impugned judgment, which has given rise to the appeal in hand.
.
7. The moot question is - whether the impugned judgment is legally tenable? The answer is in the negative for the following reasons:
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8. It pains to record herein that the parties are in the lis right from the year 1993, which is outcome of the rt entries made in the revenue record by the then revenue authorities. The private respondents approached the Assistant Collector for correction of entries in the revenue record, was treated as suit in terms of Section 58 (3) (e) of the Act. Appellant, namely Smt. Bakhshish Kaur Sarkaria, who was resident of Delhi, was contesting the said suit.
During the pendency of the suit, exparte proceedings were drawn against her and an exparte decree was passed by the Assistant Collector vide order, dated 3rd March, 1997.
9. Appellant filed an appeal before the District Collector alongwith application for condonation of delay in terms of the mandate of Section 5 of the Limitation Act.
::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 7The grounds urged by the appellant in the application were that she was residing at official residence in New Delhi, had .
to vacate the said residence prior to passing of the order by the Assistant Collector, was not aware about the exparte order because of the communication gap with her counsel of and when she came to know about the same, an application for supply of certified copy of the order was filed, which was rt supplied to her. It was also averred in the application for condonation of delay that the delay was not intentional or willful, was outcome of the circumstances disclosed in para 1 of the application.
10. The appellant has rigorously and with all the weapons in her armoury contested the order made by the Assistant Collector before the District Collector, Financial Commissioner (Appeals), the Writ Court and the Division Bench of this Court. The parties were relegated to the Financial Commissioner (Appeals) by this Court and again order came to be passed by the Financial Commissioner (Appeals) in favour of the appellant. Thereafter, second ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 8 round of litigation was drawn before this Court by the private respondents by the medium of CWP No. 1232 of .
2009, was allowed by the Writ Court. Hence, the instant appeal.
11. The appellant has contested these proceedings of also, is suggestive of the fact that the appellant has contested the lis before all the Courts bonafidely and with rt interest in order to protect her rights. Her conduct and interest assumes great importance. Thus, it cannot be said that the delay was intentional and willful.
12. Admittedly, the appellant, i.e. respondent in the main suit before the Assistant Collector, was contesting the case, issues were framed and the parties were directed to lead evidence, had failed to appear, was set exparte and the suit was decreed. 215 days' delay had creptin in filing the appeal before the District Collector.
13. Such delay cannot be made a ground to throw the appeal out of the Court on mere technicalities in view of the fact that the appellant had rigorously and keenly ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 9 contested the proceedings with effect from the year 1993 till today. She had tendered explanation as to what were the .
reasons for not filing the appeal within time. The Financial Commissioner had rightly taken in view the conduct of the appellant read with the fact that she was contesting the lis of right from the year 1993 and condoned the delay.
14. The Writ Court has, in fact, taken away the right rt of appeal and revision available to the appellant on account of delay, which was rightly condoned by the revisional authority, i.e. the Financial Commissioner (Appeals), for the reasons to be recorded hereinafter.
15. It is the duty of every authority, i.e. the appellate authority, revisional authority, Writ Courts and the Appellate Courts, to see that the rights of the parties are finally determined. It is not the object of the legislation to take away the rights of the parties on account of delay.
Delay cannot be made the only ground to dismiss the claim as time barred for the reason that the facts of each case are to be taken into consideration and weighed.
::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 1016. It should be the effort of all the Courts and .
authorities to advance substantial justice and decide matter(s) on merits. The decision on technicalities should be avoided unless it is carved out, rather established that of the party is caught by inordinate delay, which has taken away its remedy to enforce its rights.
17. rt The High Court of Gujarat in the case titled as Brij Kishore S. Ghosh versus Jayantilal Maneklal Bhatt and another, reported in AIR 1989 Gujarat 227, has held that the words 'sufficient cause' used in Section 5 of the Limitation Act are to be interpreted liberally and the Courts/authorities have to determine as to whether the delay was deliberate. It is apt to reproduce para 6 of the judgment herein:
"6. After referring to the aforesaid decisions, the learned District Judge has observed :
"When no negligence or inaction is imputable to the party, then sufficient cause has to be liberally construed."
(Emphasis supplied) ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 11 With utmost respect, the learned District Judge adopted literal approach and missed the central idea by which the Supreme Court had laid emphasis on substantial justice. As per the .
decision of the Supreme Court and this High Court, absence of negligence or inaction on the part of the party seeking to condone delay is not a precondition, for interpreting 'sufficient cause' in liberal manner. The underlying principle to be kept in mind is that the ultimate object of the procedural laws is to see that of substantial justice is done to the parties. Hence it should be the endeavour of the court to see that the disputes are resolved as far as possible on merits in just, fair and reasonable manner. Victory or defeat on technical grounds should rt ordinarily be avoided and discouraged. That is the reason why the question to be asked should beIs there deliberate delay ? Is it on account of culpable negligence or on account of mala fides ? Is it on account of any ulterior motive so that it can reasonably be pointed out that by resorting to delay the litigant was likely to be benefited ? To achieve the goal of substantial justice, the words 'sufficient cause' occurring in section 5 of the Limitation Act are required to be interpreted liberally.."
18. The Apex Court in the case titled as Ram Nath Sao alias Ram Nath Sahu and others versus Gobardhan Sao and others, reported in AIR 2002 Supreme Court 1201, held that the Courts should adopt liberal approach while dealing with Section 5 of the Limitation Act or any other similar provision in order to ::: Downloaded on - 15/04/2017 21:21:14 :::HCHP 12 advance substantial justice. It is apt to reproduce paras 7 to 11 of the judgment herein:
.
"7. The expression 'sufficient cause' within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as 'the Act'), Order 22, Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') as well as similar other provisions and the ambit of exercise of powers thereunder have been subject of matter of consideration before this Court on numerous occasions. In the case of The State of West Bengal v. The Administrator, Howrah rtMunicipality and others, (1972) 1 Supreme Court Cases 366, while considering scope of the expression 'sufficient cause' within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.
8. In the case of Sital Prasad Saxena (dead) by LRs v. Union of India and others, AIR 1985 Supreme Court 1, the Court was dealing with a case where in a second appeal, appellant died and application for substitution after condonation of delay and setting aside abatement filed after two years by the heirs and legal representatives was rejected on the ground that no sufficient cause was shown and the appeal was held to have abated. When the matter was brought to this Court, the appeal was allowed, delay in filing the petition for setting aside the abatement was condoned, abatement was set aside, prayer for substitution was granted and High Court was directed to dispose of the appeal on merits and while doing so, it was observed that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 13 before the High Court which has a seat far away from where parties in rural areas may be residing inasmuch as in a traditional rural family the father may not have informed his son .
about the litigation in which he was involved and was a party. It was further observed that Courts should recall that "What has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties."
of (Emphasis added).
9. In the case of Rama Ravalu Gavade v. Sataba Gavadu Gavade (dead) through LRs. and rt another, (1997) 1 SCC 261, during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate Court to dispose of appeal on merit observing that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer.
10. In the case of N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123, there was a delay of 883 days in filing application for setting aside ex parte decree for which application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial Court was not justified in condoning the delay ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 14 resulting into reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial Court .
whereby delay in filing the application for setting aside ex parte decree was condoned and accordingly order of the High Court was set aside. K. T. Thomas, J. speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :
"8. The appellant's conduct does not on of the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of rt course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 15 not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is .
a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the of lower Court.
10. ....................
The primary function of a Court is to rt adjudicate the dispute between the parties and to advance substantial justice. The 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."
(Emphasis added) The Court further observed in paragraphs 11, 12 and 13 which run thus : "11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 16 remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim .
interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that of every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor rt from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause"
under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, (1969) 1 SCR 1006 and State of W. B. v.
Administrator, Howrah Municipality, (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 17 party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses."
.
(Emphasis added)
11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot rt be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 18 order it is going to pass upon the parties either way."
(Emphasis added) .
19. In the case titled as Balwant Singh (Dead) versus Jagdish Singh & Ors., reported in AIR 2010 Supreme Court 3043, held as under:
of "15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (AIR 2009 SC (Supp) 886 : 2008 AIR SCW 6025) (supra). In rt this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under: "13 (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant."
(ii) In considering the reasons for condonation of delay, the courts are more ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 19 liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal .
representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on of merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but rt sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 20 or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his .
counsel about the listing of the appeal.
We may also notice here that this judgment had been followed with approval by an equibench of this Court in the case of Katari Suryanarayana (AIR 2009 SC 2907 : 2009 AIR SCW 4640) (supra).
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16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in rt contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equibenches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications."
(Emphasis added) ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 21
20. The Apex Court in another case titled as Maniben Devraj Sahu versus Municipal Corporation .
of Brihan Mumbai, reported in 2012 AIR SCW 2412, has held that the expression 'sufficient cause' used in Section 5 of the Limitation Act is elastic enough to enable the Courts of to apply the law in a meaningful manner which serves the ends of justice. It is apt to reproduce paras 12 to 14 of the rt judgment herein:
"12. We have considered the respective arguments/submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The expression 'sufficient cause' used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 22 matters so that substantive rights of the parties are not defeated merely because of delay.
13. In Ramlal v. Rewa Coalfields Ltd, AIR 1962 .
SC 361, this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition:
"In construing Section 5 (of the Limitation Act), it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the of period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties. In other rt words, when the period of limitation prescribed has expired, the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice."
14. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (AIR 1987 SC 1353) (supra) this Court made a significant departure from the earlier judgments and observed:
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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"::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 23
employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the .
lifepurpose for 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 of 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. rt
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 be decided on merits 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 pragmatic manner.
4. 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 nondeliberate 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 ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 24 resorting to delay. In fact he runs a serious risk.
6. 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.
Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of of the appeal. The fact that it was the "State"
which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands rt that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the "State" is the applicant praying for condonation of delay. In fact 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 notemaking, filepushing and passingonthebuck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigantnongrata 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 "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenhanded justice on merits ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 25 in preference to the approach which scuttles a decision on merits."
21. In the case titled as Brijesh Kumar and .
others versus State of Haryana and others, reported in 2014 AIR SCW 1831, held that the Rules of Limitation are not meant to destroy the rights of the parties and the Courts of should not adopt an injusticeoriented approach in rejecting the application for condonation of delay and while allowing rt such applications, have to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence. Further held that the conduct of the parties is also to be taken into consideration. It is apt to reproduce paras 7 to 11 of the judgment herein:
"7. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts.
The law of limitation is enshrined in the legal maxim "Interest Reipublicae Ut Sit Finis Litium" (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 26
8. The Privy Council in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures .
1932 wherein it has been said that "a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by of the law, postpone its operation, or introduce exceptions not recognised by law."
9. ................
rt
10. While considering a similar issue, this court in Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 : (AIR 2014 SC (Civ) 67) laid down various principles inter alia:
"xxx
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact
vi) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play xxx
ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 27
xxx xvii) The increasing tendency to perceive .
delay as a nonserious mater and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(See also: Basawaraj v. Land Acquisition Officer, 2013 14 SCC 81) of
11. The courts should not adopt an injustice oriented approach in rejecting the application rtfor condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."
(Emphasis added)
22. Keeping in view the discussion made hereinabove, the facts of the case and the tests laid down by the Apex Court, it can safely be held that the delay of 215 days, which had creptin in filing the appeal before the District Collector, was not on account of any dilatory tactics, ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 28 want of bona fides, deliberate inaction or negligence on the part of the appellant for the reason that the appellant, who .
is an old lady and had to vacate the official residence during the pendency of the suit before the Assistant Collector, is rigorously contesting the case for the last about 23 years.
of
23. It appears that the revisional Court, i.e. the Financial Commissioner (Appeals) with the judicious rt approach condoned the delay, but, unfortunately, the Writ Court has fallen in an error in setting aside the order made by the Financial Commissioner, granting the writ petition and has lost sight of the facts of the case and conduct of the parties, as discussed hereinabove.
24. The impugned judgment, on the face of it, is not in accordance with the law, rather, is aimed at to deprive the appellantan old lady from a remedy, which is her right, that too, before the revenue authorities, in terms of the mandate of the Act, where it was to be decided whether the private respondents, i.e. the applicants before the Assistant ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 29 Collector, were nonoccupancy tenants or not, which has, directly or indirectly, affected the rights of the appellant.
.
25. Viewed thus, the Financial Commissioner (Appeals), after hearing the parties, has rightly set aside the order made by the appellate authority, i.e. District Collector of rejecting the limitation petition and directed it to decide the appeal on merits.
26. rt Having said so, the impugned judgment merits to be set aside. Accordingly, the impugned judgment is set aside, the appeal is allowed and the writ petition is dismissed with a command to the appellate authority, i.e. the District Collector, to decide the appeal within one month with effect from 1 st November, 2016, after hearing the parties.
27. It is made clear that any observation(s) made by this Court shall not influence the appellate authority in any way while determining the appeal and shall not cause any prejudice to the right of the parties.
28. Parties are directed to appear before the appellate authority, i.e. the District Collector, on 1st November, 2016.
::: Downloaded on - 15/04/2017 21:21:15 :::HCHP 3029. Pending applications, if any, are also disposed of accordingly.
.
(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge of October 4, 2016 ( rajni ) rt ::: Downloaded on - 15/04/2017 21:21:15 :::HCHP