Punjab-Haryana High Court
State Of Haryana Th Collector Sonepat & ... vs Vikram on 16 December, 2014
1
IN THE HIGH COURT OF JUDICATURE FOR THE STATES OF PUNJAB AND
HARYANA, AT CHANDIGARH
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Regular Second Appeal No.6267 of 2014(O&M)
Date of Decision: December 16, 2014
State of Haryana through its Collector, Sonipat and another ....Appellants
Versus
Vikram ....Respondent
CORAM: HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN.
Present: Mr. Manjeet Singh, Deputy District Attorney, Haryana for the appellant
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1. Whether Reporters of local papers may be allowed to see the judgment?
Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
Mahavir S. Chauhan, J. (ORAL)
Civil Suit No. RT 434 of 2008 was brought by respondent Vikram against the appellants herein for possession of land measuring one Kanal thirteen Marlas comprised in Rectangle/Killa No. 88//1/3 and eleven Marlas comprised in Rectangle/Killa No. 88//1/5 by alleging that this land belongs to him but has been encroached upon by the appellants by constructing a road without payment of compensation to him; the encroachment was established in a demarcation carried out by revenue authorities in the presence of officials of the appellant-State; and his various request, including a notice served upon the appellants under Section 80 of the Code of Civil Procedure, 1908 (CPC, for brevity) had failed to cut ice with the appellants.
VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 2
02. Respondent's suit was contested by the appellants by filing a written statement wherein, while denying the averments of the respondent and adding that the road in question was in existence for the last more than fifteen years, a number of preliminary objections were also put up.
03. Learned Civil Judge (Senior Division), Sonipat ('trial court', for brevity) framed issues, allowed the parties to lead evidence, heard them and vide judgment/decree dated August 16, 2012 decreed, with costs, respondent's suit mandating the appellants to "hand over the actual physical possession of the encroached portion of the suit land" to the respondent by removing the "pucca road at their own cost".
04. To assail judgment/decree dated August 16, 2012 of the learned trial court appellants preferred Civil Appeal No. 218 of 2012 which, after contest, has been dismissed by learned Additional District Judge, Sonipat ('first appellate court' for brevity) vide judgment/decree dated November 07, 2013.
05. Judgment/decree dated November 07, 2013 of the learned first appellate court is under challenge in this regular second appeal brought by the defeated defendants.
06. The appeal is barred by time. By way of an application under Section 5 of the Limitation Act, 1963 ('Act', for brevity) appellants seek condonation of delay of 302 days in filing the regular second appeal on the plea that after learned first appellate court dismissed their appeal on November 07, 2013, they made an application for certified copy of the judgment and decree on November 08, 2013, which was delivered to them on November 14, 2013; the case, accompanied by certified copies of impugned judgments and decrees, was then sent to Legal Rememberancer, Haryana; it was wrongly supposed that the necessary documents stood submitted to the District Attorney, Sonipat; and the case was completed only on receipt of a direction from Superintending Engineer, Public Works Department (Buildings and Roads), Haryana vide his memorandum dated September 09, 2014.
VIRENDRA SINGH ADHIKARIRSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 3 07, In support of contentions raised in the application, affidavit of K.S. Suhag, Executive Engineer, Provincial Division No. 01, Public Works Department (Buildings and Roads), Sonipat has been appended.
08. I have heard learned State counsel for the appellants.
09. Plea put up to seek condonation of delay is that after receipt of certified copies of the impugned judgments and decrees the matter was transmitted to Legal Rememberancer, Haryana and then it was supposed that the case stood submitted to District Attorney. The date on which case was submitted to Legal Rememberancer, Haryana has been withheld. Let alone the date, appellants have placed on record no materials to show that the case in fact was sent to the Legal Rememberancer. Use of the terminology that it was supposed that the case stood submitted to the District Attorney indicates towards lackaidaisical and callous approach of the authorities of the appellant State. No efforts are shown to be put in to find out fate of the case after it was, statedly, transmitted to the Legal Rememberancer either from that office or from the office of the District Attorney, Sonipat to whom it was "supposed" to have been submitted. It has remained unexplained how and when the matter reached District Attorney, Sonipat and what steps were taken to get it expedited. Even after receipt of a direction from Superintending Engineer, Public Works Department (Buildings and Roads), Haryana vide his memorandum dated September 09, 2014, the instant appeal has been filed on December 01, 2014. Appellants have thought it unnecessary and wasteful to explain the interregnum from September 09, 2014 to December 01, 2014.
10. Article 116(a) of the Schedule appended to the Act mandates that an appeal "to a High Court from any decree or order" must be filed within ninety days from the date of the decree or order. According to Rule (1) of Order XLII, of the Code of Civil Procedure, 1908 ('CPC', for short) "The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees." Rule (3A) of Order XLI, CPC, empowers the appellate court to entertain an appeal after expiration of the period of limitation provided the appellant satisfies it that he VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 4 had sufficient cause for not preferring the appeal within the period of limitation prescribed for filing such an appeal. It reads as under:
"3A. Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.
(2) If the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear the appeal."
11. In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, the Apex 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 period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder 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 decree-holder by lapse of time should not be light-heartedly 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."
12. In Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, Supreme 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 VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 5 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 subserves the ends of justice that being the life purpose 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 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 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 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 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 justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution 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 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 step-motherly 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 note-making, file-pushing and passing-on-the-buck 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 litigant-non-grata status. The courts therefore have VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 6 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 in preference to the approach which scuttles a decision on merits."
13. In N. Balakrishnan v. M. Krishnamurthy, 1999(2) R.C.R.(Civil) 578 : (1998) 7 SCC 123, Supreme Court went a step further and made the following observations:
"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 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 untrammelled by the conclusion of the lower court. 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 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 every legal remedy must be kept alive for a legislatively fixed period of time.
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 VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 7 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 party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
14. In P.K. Ramachandran v. State of Kerala, 1997(4) R.C.R.(Civil) 242 : (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
15. In Vedabai v. Shantaram Baburao Patil, 2001(3) R.C.R. (Civil) 831 : (2001) 9 SCC 106, the Apex Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.
16. In State of Nagaland v. Lipok AO (supra), the Court referred to several precedents on the subject and observed that the proof of sufficient cause is a condition precedent for exercise of discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The Court also took cognizance of the usual bureaucratic delays which takes place in the functioning of the State and its agencies/instrumentalities and observed:
"Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 8 by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note- making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata 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 of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal."
17. In Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay, 1994 Supp (2) SCC 603, there was a delay of 264 days in filing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in petitioner's own words as under:
".....2 (g) The Advocate-on-Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on June 24, 1993 along with the case file.
(h) The Board returned the case file to the Advocate-on-
Record on July 9, 1993 who re-sent the same to the Board on September 20, 1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993."
After incorporating the above explanation, Supreme Court refused to condone the delay by observing thus:
"3. ... .... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."
18. In Pundlik Jalam Patil (dead) by LRS. v. Executive Engineer, Jalgaon VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 9 Medium Project and Another, 2008(4) R.C.R.(Civil) 885 : 2008(6) R.A.J. 318 : (2008) 17 SC 448, the question was whether the respondent- Executive Engineer, Jalgaon Medium Project had shown sufficient cause to condone the delay of 1724 days in filing appeals before the High Court. In para 17, Supreme Court held:
".....The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights".
After referring to various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, Supreme Court observed as under:-
"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
19. It is also apt to refer to following observation of the Supreme Court in Maniben VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 10 Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157:
18. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
What colour the expression sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
20. It, thus, comes out that 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 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 VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 11 promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. Further, in the modern times when the world has considerably shrunk by advancement of technology and a matter to travel from one office to another needs only click of the magical "mouse", a plea as put up by the appellants in support of their claim for condonation of delay cannot be countenanced, more so when the State is expected to be a model litigant and saviour of rights of its citizens. True, technical plea of limitation should not be preferred to a decision on merits but it is equally true and important that rights that accrue to a litigant on expiration of prescribed period of limitation cannot be interfered with lightly. As aforesaid, from the circumstances enumerated in the application for condonation of delay the only conclusion that can be reached is that the appellants have been sleeping over the matter and even memorandum dated September 09, 2014 of Superintending Engineer, Public Works Department (Buildings and Roads), Haryana, Sonipat was not able to bring them out of the slumber as even thereafter the appellants did not act with promptitude and no explanation has been offered for not filing the appeal till December 01, 2014.
21. Appellants have no case on merits as well.
22. Both the courts below have concurrently held that from the demarcation report, Exhibit P1, it is amply proved that the appellants have encroached upon the land in suit that belongs to the respondent; it has been admitted by Ashwani Kumar, the only witness examined by the appellants, that the demarcation was carried out as per rules in the presence of officials of the appellant-State; and the appellants have failed to bring any evidence, worth the name, to substantiate their plea that the road in question has been in VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh 12 existence for more than fifteen years before filing of the suit by the respondent or that the land underneath it was acquired as per provisions of Land Acquisition Act and compensation was paid to the respondent. Nothing to the contrary could be shown during the course of hearing.
23. In view of the above, appellants' claim for condonation of delay is found to be meritless and the appeal to be wanting not only as regards involvement of a substantial question of law but also in merit.
24. Consequently, the appeal fails and is dismissed.
25. Pending miscellaneous applications, if any, are rendered infructuous and stand disposed of accordingly.
[Mahavir S. Chauhan] Judge December 16, 2014 adhikari VIRENDRA SINGH ADHIKARI RSA No.6267 of 2014 2015.05.04 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh