Orissa High Court
****** vs Government Of Odisha .... Opp. Party on 26 June, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 05-Jul-2024 18:07:15
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1096 OF 2023
(An application under Article 227 of the Constitution of India)
******
Krushna Chandra Behera Pradhan .... Petitioners
and another
-versus-
Government of Odisha .... Opp. Party
Advocates appeared:
For Petitioners : Miss Deepali Mahapatra, Advocate,
For Opp. Party : Mr. Amiya Kumar Mishra,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 26.06.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Petitioners in this CMP seek to assail the judgment dated 19th July, 2023 (Annexure-10) passed by Additional District Judge, Bhawanipatna in Civil Revision No.5 of 2019, whereby confirming the order dated 4th September, 2019 (Annexure-9) passed by learned Civil Judge (Junior Division), Bhawanipatna in CMA No.2 of 2018 (CMA No.3 of 2018), learned appellate Court dismissed the appeal and thereby confirmed the order allowing an application filed by the State-Opposite Parties under Order IX Rule 13 CPC.
CMP No.1096 OF 2023 Page 1 of 11 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 2 //
3. Brief facts relevant for consideration of this Court are that TS No.41/117 of 2002-2005 was filed by the Petitioners against the State-Opposite Party for declaration of their right, title and interest over the suit property by way of adverse possession. Although the State-Opposite Party appeared through learned Government Pleader, but did not file its written statement. Consequently, the Suit was decreed ex-parte vide judgment dated 21st September, 2006. An application under Order IX Rule 13 CPC in CMA No.2 of 2018 (Annexure-6) was filed by the State-Defendant for setting aside the ex-parte decree along with an application for condonation of delay under Section 5 of the Limitation Act. It is stated in the petition under Annexure-6 that although the State-Opposite Party entered appearance in the suit, but no para-wise comment could be provided. Thus, the written statement could not be filed within the stipulated time. On the basis of the ex parte decree, the Petitioners on 2nd June, 2016, filed an application before the Tahasildar, Kalahandi at Bhawanipatna for mutation of the suit land in their favour. After filing of the mutation case, they came to know about the ex-parte decree and applied for the certified copy from which they came to know that no written statement was filed in the suit. It is also stated in the petition that for the negligence of the officials, who were looking after the suit on their behalf, the State should not suffer. Property involved is a valuable piece of government land (anabadi). Unless the ex-parte decree is set aside the State would be highly prejudiced. It was CMP No.1096 OF 2023 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 3 // also stated that the suit was not maintainable for non-compliance of provisions of Section 80 CPC. After it came to the knowledge of the officials that an ex-parte decree has been passed obtaining necessary documents, the petition under Order IX Rule 13 was filed in the year 2018 along with a petition in CMA No.3 of 2018 under Section 5 of the Limitation Act. Learned trial Court holding that the land involved is a valuable piece of property and in the meantime, several officials have been transferred for which the proceedings of the suit could not be kept track of, allowed the application under Order IX Rule 13 CPC vide order under Annexure-9. Assailing the same, Petitioners preferred Civil Revision No.5 of 2019, which was dismissed vide judgement under Annexure-10. Hence, the CMP has been filed assailing the impugned judgment under Annexures- 9 and 10.
3.1 Miss Mahapatra, learned counsel for the Petitioners further submits that Government officials should not be rewarded for their negligence. The grounds taken in the petition under Order IX Rule 13 CPC cannot be the cause much less sufficient cause to condone the inordinate delay of more than twelve years in filing such petition and to allow the same. It is her submission that admittedly the ex-parte decree came to the knowledge of the Opposite Party in the year 2016, when the mutation case was filed. Even thereafter, there is an unexplained delay of more than two years in filing the petition under Order IX Rule 13 CPC. As such, both the Courts have committed error of both fact and law in allowing the application under Order IX Rule 13 CPC. By CMP No.1096 OF 2023 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 4 // allowing such application, a valuable right accrued to the Petitioners by virtue of an ex-parte decree is being lightly taken away, which was never the intent and object of the provision under Order IX Rule 13 CPC. She also relied upon the case of State of Madhya Pradesh and others Vs. Bherulal, reported in (2020) 10 SCC 654, wherein relying upon the case of Office of the Chief Post Master General v. Living Media India Ltd., reported in (2012) 3 SCC 563, Hon'ble Supreme Court dismissed the appeal filed by the State of Madhya Pradesh, refusing to condone the delay of 663 days and imposed a cost of Rs.25,000/, which was directed to be deposited with the Mediation and Conciliation Committee of the State. It is her submission that a pragmatic view should be taken in condoning the delay and entertaining an application under Order IX Rule 13 CPC. But in the instant case, the explanation given by the State-Opposite Party is a mere excuse, which gives a clear picture that government officials were thoroughly negligent in pursuing their right before the Court. She, therefore, submits that learned Courts have committed an error of law in condoning inordinate and un- explained delay of more than twelve years in allowing the application under Order IX Rule 13 CPC.
4. Mr. Mishra, learned AGA vehemently objects to such submission. It is contended that learned Courts, while adjudicating the matter, have taken into consideration different case laws and analyzing the facts and circumstances of the case more particularly the fact that by virtue of an ex-parte decree, a CMP No.1096 OF 2023 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 5 // valuable piece of government land is being taken away by the Petitioners, allowed the application under Order IX Rule 13 CPC. The fact-finding Courts having concurrently held that the delay in filing the application should be condoned and the petition under Order IX Rule 13 CPC should be allowed, this Court should not interfere with the same in exercise of extra-ordinary jurisdiction under Article 227 of the Constitution. He also relied upon the case of Sheo Raj Singh (Deceased) through Lrs. and others Vs. Union of India and another, reported in 2023 SCC OnLine SC 1278, wherein the Hon'ble Supreme Court took note of the case laws in the case of G. Ramegowda Vs. Spl. Land Acquisition Officer, reported in (1988) 2 SCC 142, Mst. Katiji Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., reported in 1987 AIR 1353 and Special Tehsildar, Land Acquisition v. K.V. Ayisumma, reported in 1996 (10) SCC 634.
5. It is his submission that in litigation to which, the Government is a party, is lost for default, no individual is affected, but what in the ultimate analysis suffer is the public interest. The decisions of the Government are collective and institutional decisions and do not share the characteristics of a decision of a private individual. Observing as above, the Hon'ble Supreme Court has held as under:-
"17. State of Nagaland v. Lipok AO & Ors., (2005) 3 SCC 752 arose out of an appeal where this Court condoned the State's delay of 57 days in applying for grant of leave to appeal before the high court against acquittal of certain accused persons. This Court observed that in cases where substantial justice and a CMP No.1096 OF 2023 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 6 // technical approach were pitted against each other, a pragmatic approach should be taken with the former being preferred. Further, this Court noted that what counted was indeed the sufficiency of the cause of delay, and not the length, where the shortness of delay would be considered when using extraordinary discretion to condone the same. This Court also went on to record that courts should attempt to decide a case on its merits, unless the same is hopelessly without merit. It was also observed therein that it would be improper to put the State on the same footing as an individual since it was an impersonal machinery operating through its officers.
It might be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are provincially slow encumbered, as they are by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is therefore not impermissible. It is rightly said that those who bear the responsibility of the Government must have a little play at the joints. During recognition of those limitations on Government functioning of course within reasonable limits is necessary in judicial approach is not to be rendered unrealistic. It would perhaps be unfair and unrealistic to prove the Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of the Governmental functioning is procedural delay incidental to the decision- making process. He, therefore, submits that learned Courts have committed no error in providing the Government an opportunity to contest the suit to protect their right in the suit property.CMP No.1096 OF 2023 Page 6 of 11 Signature Not Verified Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 7 // 5.1 It is further submitted that the Opposite Party-State has clearly stated the reasons for which no step could be taken to file the written statement as well as to institute a proceeding under Order IX Rule 13 CPC in time. Taking note of the same, learned Courts were of the opinion that the ex-parte decree under Order IX Rule 13 CPC should be set aside. Thus, the impugned orders under Annexures-9 and 10 should not be interfered with.
6. Taking note of the submissions made by learned counsel for the parties, this Court thinks it profitable to quote the relevant portion of the judgment in Office of the Chief Post Master General (supra).
"13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay."
In the case of Sheo Raj Singh (supra), Hon'ble Supreme Court at para-29 observed as under:-
CMP No.1096 OF 2023 Page 7 of 11 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 8 //
29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an 'explanation' and an 'excuse'. An 'explanation' is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see 'explanation' and 'excuse' as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. An 'excuse' is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an 'excuse' would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication."
(Underlining for emphasis)
7. From an analysis of the submissions made by learned counsel for the parties and on perusal of the record more particularly the ground taken in the petition under Order IX Rule CMP No.1096 OF 2023 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 9 // 13 CPC under Annexure-6, it is crystal clear that those are not the explanations but mere excuses of the State Government. As held in Sheo Raj Singh (supra), there is a distinction between 'explanation' and 'excuses'. It is held therein that condonation of delay being a discretionary power available to Courts, exercise of discretion must necessarily depend upon sufficiency of the cause and degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being offered, delay of shortest range may not be condoned whereas in certain other cases delay of long period can be condoned if the explanation is satisfactory and acceptable. Of course, Courts must distinguish between 'explanation' and 'excuse'. Explanation is designed to give someone all of the facts and lay out a cause for something. It helps clearly the circumstances of a particular event and allows the person to point out that something that has happened is not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although common people tend to see 'explanation' and 'excuse' in same parlance and struggled to find out the difference between the two, but the Court of law has the obligation to find out that distinction which though fine, is real. An excuse is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something just an 'excuse' would imply that 'explanation' offered is believed not to be true. Thus, the Hon'ble Supreme Court has observed that length of delay is not a CMP No.1096 OF 2023 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 10 // matter of consideration but the explanation that is offered has a dominant role in considering the case of the parties in taking a decision for condonation of delay. The Hon'ble Supreme Court has also observed that a delay whatsoever minimal may be, should not be condoned on a mere excuse. In the instant case, on a bare perusal of the petition under Order IX Rule 13 CPC, it appears that the Government has admitted its negligence stating that for the negligence of the officials, the State should not suffer. The officials being employees of the State, State Government has a vicarious liability for the loss caused by its officials. Further, no explanation for condonation of delay much less any sufficient cause is offered in the petition under Order IX Rule 13 CPC, only because an ex-parte decree has been passed declaring right, title and interest of the Petitioners over a valuable piece of land, the same cannot be a ground to condone the inordinate and un- explained delay of more than 12 years.
7.1 It further appears from the petition under Order IX Rule 13 CPC that the State Government had entered appearance in the suit, but did not file its written statement. In the year 2016, a Mutation case was filed by the Petitioners to record the land in their name on the basis of ex-parte decree. It is also stated in the said petition that from the mutation petition filed by the Petitioners, the State came to know about the ex-parte decree, but surprisingly no explanation has been offered for condonation of delay in filing the petition under Order IX Rule 13 CPC in 2018, i.e., after more than two years of filing of the Mutation Case.
CMP No.1096 OF 2023 Page 10 of 11 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Jul-2024 18:07:15 // 11 // Further, no details or particulars has been provided either in the petition under Order IX Rule 13 CPC or in the petition for condonation of delay explaining the delay. The State-Opposite Party appears to be very casual in their approach in filing the petition under Order IX Rule 13 CPC. In that view of the matter, this Court is of the considered opinion that learned Courts have committed error of law and fact in arriving at the conclusion.
8. Accordingly, orders passed under Annexures-9 and 10 are not sustainable and are accordingly set aside. However, in the facts and circumstances of the case, there shall be no order as to costs.
9. The CMP is allowed accordingly.
10. Interim order dated 12th October, 2023 passed in IA No.1055 of 2023 stands vacated.
Issue urgent certified copy of the judgment on proper application.
(K.R. Mohapatra) Judge s.s.satapathy CMP No.1096 OF 2023 Page 11 of 11