Gujarat High Court
Dakshin Gujarat Vij Company Ltd. ... vs Amardeep Association on 8 February, 2013
Author: V.M.Sahai
Bench: Vijay Manohar Sahai
DAKSHIN GUJARAT VIJ COMPANY LTD. THROUGH MANAGING DIRECTOR....Applicant(s)V/SAMARDEEP ASSOCIATION ,NAVSARI, C/CA/13520/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.13520 of 2012 In LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1531 of 2012 In SPECIAL CIVIL APPLICATION NO. 21824 of 2006 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ DAKSHIN GUJARAT VIJ COMPANY LTD. THROUGH MANAGING DIRECTOR....Applicant(s) Versus AMARDEEP ASSOCIATION ,NAVSARI, & 2....Respondent(s) =========================================================== Appearance:
MS LILU K BHAYA, ADVOCATE for the Applicant(s) No. 1 MRS SANGEETA N PAHWA, ADVOCATE for the Respondent No. 1 MRS KRINA CALLA, ADVOCATE for the Respondent No.2.
================================================================ CORAM:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH Date : 08/02/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE S.G.SHAH) We have heard Ms.Lilu Bhaya, learned counsel for the applicant on the delay condonation application, Mrs.Sangeeta Pahwa, learned counsel appearing for opponent No.1 and Mrs.Krina Calla, learned A.G.P for opponent No.2 at length on 28.1.2013.
Rule.
Learned advocate Mrs.Sangeeta Pahwa waives service of rule for opponent No.1 and Mrs.Krina Calla, learned A.G.P. waives service of rule for opponent No.2.
Before coming to the present application, it would be appropriate to recollect the details of litigations reaching upto the present Civil Application for condontation of delay in filing the Letters Patent Appeal against the order passed by learned Single Judge in Special Civil Application No.21284 of 2006. Special Civil Application No.21284 of 2006 was preferred by one M/s.Amardeep Association in the month of October 2006, claiming appropriate writ and directions against the Dakshin Gujarat Vij Company Ltd. and to grant permission for provisional power connection in respect of lands and properties covered by Survey Nos.336/1 (336, 336/P and 336/3 Hissa No.1) (C.S.No.1714 Tika No.36) and Vejalpore Survey Nos.311/P, 310/1, 310/2, 310/5, 310/7, 307/1, 308/1, 301/A/2 and 301/B forthwith. Though the facts, details and issues either before the learned Single Judge in such Special Civil Application or before us in Letters Patent Appeal may not be much relevant for consideration of application for condonation of delay, since the learned advocate for the opponent has argued in detail and referred several factual details, we are obliged to deal with all such factual details.
From the record, it becomes clear that all such lands were originally owned by Navsari Cotton and Silk Mills Ltd. and when it becomes sick industrial company in terms of SICA, a reference was made to BIFR in the year 1990 when BIFR sanctioned a rehabilitation scheme in the year 1991 and revised it in the year 1996. During the process of such rehabilitation scheme, present opponent has purchased the land and applied for electricity connection in view of the directions issued by the BIFR in its scheme, which was sanctioned under the provisions of Section 18 of the Sick Industrial Companies Act. The sum and substance of the Special Civil Application is to the effect that opponent herein is entitled to the power connection from the applicant as a new owner and seeking fresh power connection. Whereas applicant has passed an order on 20.09.2005 that in view of the arrears of electricity from the old owner of such premises, no new power connection can be given. Thereby the basic issue between the ligitants herein is relating to the old dues of predecessor in title from new owner for release of new electricity connection for the same premises.
Before proceeding further with the facts and details of this case, it would be appropriate to recollect here that such issue was referred to the larger Bench of this Court in the case of Apurva Chemicals & Ors. in Special Civil Application No.2582 of 2012. The order and judgment dated 3.12.2012 in such Special Civil Application has been challenged before the Hon ble Apex Court by filing Special Leave to Appeal (Civil) No.37871 of 2012 by the present applicant being Dakshin Gujarat Vij Company Ltd. wherein by an order dated 11.12.2012, while issuing notice, the Apex Court has stayed the impugned order of this Court, which otherwise confirms that old dues of predecessor cannot be recovered from new owner for release of new electric connection for the same premises. Therefore, atleast until such SLP is decided by the Hon ble Apex Court, the issue regarding recovery of old dues of the predecessor in title for the same premises from new owner for release of new electric connection for the same premises remains sub-judice and authority lower than the Apex Court may not take any final decision on such issue.
The same principle will apply to the electricity companies, more particularly, when they are semi-Government companies or companies owned and managed by the State Authority. It is also relevant to recollect here that, in fact, after the impugned order of Special Civil Application in the Letters Patent Appeal before us, a condition No.4.1.11 has been incorporated in The Electricity Supply Code, 2005, which allows the electricity company to refuse the new electric connection in the same premises where there is old dues of consumption of electricity for the electric connection already provided to the same premises. In the present case, all above issues are involved and, therefore, they are recollected so as to deal with the contentions of both the parties in this application for condonation of delay of 865 days in filing the appeal against the order dated 14.6.2010 in Special Civil Application No.21284 of 2006. By such judgment and order dated 14.6.2010, the learned Single Judge has directed the applicant electricity company to grant electricity connection to the opponent herein without insisting for the payment of previous owner s dues observing that the electricity company can recover the outstanding electricity dues from the previous owner in accordance with law and in accordance with the provisions contained in the revised sanctioned Scheme. Though it is not disclosed, learned Single Judge must be referring to the Scheme approved under the proceedings before the BIFR. As already noticed, BIFR has directed the electricity company to grant electricity connection to the new owner without asking for dues of the old owner. The record shows that after such order, applicant - electricity company has granted some connections. However, it seems that thereafter company has decided to take necessary steps and stopped to grant new connection. Therefore, respondent herein has preferred Misc.Civil Application Nos.1464 of 2012 as well as 3178 of 2012 claiming Contempt of Court by the applicant electricity company and practically for directions for execution of order and judgment dated 14.6.2012 in original Special Civil Application. In both such Misc. Civil Applications respectively on 24.6.2010 and 10.12.2012, some directions were granted by this Court in favour of the opponent herein. Probably, this has resulted into filing of present Letters Patent Appeal against the order dated 14.6.2010.
Learned advocate Ms.Lilu Bhaya for the applicant has submitted that though they have released electricity connection between 30.12.2010 till 1.4.2012, in view of amendment in Clause No.4.1.11 of The Electricity Supply Code working effect from 20.8.2010, they have decided not to accept the fresh application for electricity connection and in such cases they have not entertained such application of present opponent considering the fact that the dues of old owner of the premises, namely, M/s.Navsari Cotton & Silk Mills Ltd., which was then known as Morarji Desai Mills was to the tune of approximately Rs.22 Crores and, therefore, in view of amendment in The Electricity Supply Code, it would be difficult for the electricity company to provide fresh electricity connection without recovering dues for the same premises. It is further submitted that at this juncture in view of the order dated 24.7.2012 passed in Misc.Civil Application No.1464 of 2012, it has become necessary for the applicant to challenge the order in Special Civil Application. It is further submitted that there is some delay due to administrative contingency in the office and administration of the electricity company and after getting legal opinion, they have decided to file such appeal and because of such reasons, there is delay of 865 days. The applicant is also relying upon few judgments of the Hon ble Apex Court as pleaded in the application itself, which will be dealt with hereinafter. It is also submitted that opponent-original petitioner has prayed for connection for the land and properties, which were not owned by them on the date of filing of the original Special Civil Application.
The opponent being original petitioner has contest such request to condone the delay of 865 days by filing a detailed Affidavit in reply on 7.1.2013. The points raised by the learned advocate for the opponent, as pleaded in such reply and argued before the Court can be summarised as under:-
7.1. There is no cause of action for filing Letters Patent Appeal.
7.2. No cause, much less sufficient cause is shown for condonation of delay.
7.3. There is no misrepresentation as argued by the petitioner.
7.4. Condition No.4.1.11 does not come in picture.
7.5. No cause is shown for delay from August 2010 when above condition was incorporated till November 2012 when appeal was filed.
7.6. Non-compliance of impugned order.
7.7. There is a conscious decision not to challenge the impugned order.
7.8. There is suppression of material fact by the applicant and that whether above decision regarding not to file an appeal would be material fact for condonation of delay.
7.9. There is no change in law or no other reason to challenge the judgment, after taking conscious decision.
Learned advocate Ms.Pahwa has also relied upon several citations in support of above issues, which shall be dealt with hereinafter.
The learned advocate for the opponent has relied upon several factual details from the record of original Special Civil Application. All such averments on factual details from pleadings may be summarised as under.
9.1 The applicant has not explained the delay from 14.6.2010 till 21.9.2012 as pleaded in affidavit in reply.
9.2 It is stated that there is no prima-facie case in favour of the applicant and to substantiate such argument, the opponent has reproduced paragraph 27 of the impugned order dated 14.6.2010 in paragraph 10 of affidavit in reply wherein the learned Single Judge of this Court has observed that BIFR has directed the respondent company through the State Government to grant power connection to the petitioner without insisting for the payment of previous owner s dues and that directions issued by the BIFR are binding on the respondent company and so on.
9.3 Letter dated 27.10.2010 by the Company Secretary of the applicant company to its Superintending Engineer is relied upon submitting that opinion of Company Secretary was not followed at the relevant time.
9.4 Letter dated 2.11.2010 of Executive Engineer of the applicant addressed to the opponent to show that they have reason to know about the correspondence by Company Secretary to the Officer of the applicant.
9.5 Letter dated 20.5.2004 by the Sales Committee of the Navsari Cotton & Silk Mills, Navsari addressed to the opponent conveying permission granted by the BIFR with reference to property in question, more particularly Survey Nos. of land, which is purchased by the opponent.
9.6 Judgment and order dated 14.6.2010 being impugned judgment to confirm the total area of the land as being observed by the learned Single Judge.
9.7 Final order and direction by the impugned judgment dated 14.6.2010, which confirms that electricity connection is to be granted as prayed for without insisting for the payment of previous owner s dues.
From the above listed submissions, so far as reference to some letters and correspondences are concerned, it is clear that the Court cannot rely upon opinion of anybody while deciding any matter on its own merits and, therefore, the controversy regarding contents of letter, knowledge of such communication to opponent and possession of such letters with the opponent as objected by the applicant are not required to be dealt with in the present application, which is only for condonation of delay, more particularly when condonation of delay would rest solely upon the cause for delay and not on the merits or opinion of the case on hand.
So far as other submissions are concerned, though they are dealt with herein at appropriate place, it is made clear that in general all such factual details are not to be relied upon for consideration of condonation of delay, for the simple reason that if any decision is taken on such merits by the learned single Judge, and observation on such facts would unnecessarily disturb the decision, when such judgment is impugned in present Letters Patent Appeal. In other words, determination relating the facts may be done only if the parties are given proper opportunity to argue the matter fully on merits, touching all aspects. However, when opponent has read out and referred the final direction in the impugned judgment, it would be sufficient to recollect such order wherein though it is categorically stated that the respondent electricity company is directed to grant electricity connection to the petitioner as prayed for and then added that it should be without insisting for payment of the previous owner s dues and that electricity company may recover such dues from the previous owner in accordance with law and in accordance with the provisions contained in the revised sanctioned scheme. Therefore, it becomes clear that electricity company is entitled to recover the amount in accordance with law and when a decision by the High Court that electricity company cannot recover the previous dues from the new owner is stayed by the Hon ble Apex Court, there is reason for the applicant company to challenge such order by appropriate proceedings. At the same time, it would be beneficial to refer the prayers in Special Civil Application itself. When in the impugned order, it is stated that as prayed for , it makes it clear that there is difference in what is prayed for and what is granted and at least to that extent, the applicant has sufficient cause of action to prefer appeal against the impugned order.
So far as present application is concerned, it is solely restricted to condonation of delay in filing Letters Patent Appeal is concerned, irrespective of facts, details and merits of the main case as well as Letters Patent Appeal. Therefore, practically it would be futile exercise to reproduce the averments and arguments by both the parties so far as it is concerning factual details of the parties, litigations between them and further details relating to property in question.
However, to decide the application for condonation of delay, the Court has to consider that whether there is sufficient and reasonable cause for condonation of delay in filing any litigation beyond the prescribed period of limitation.
There are catena of judgments, more particularly when sufficient cause and reasonable ground are not defined under the law, that in general, the dispute shall be resolved on its own merits rather than technicalities and that, therefore, sufficient cause and reasonable ground for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straitjacket formula that what is sufficient cause and what is reasonable ground for condonation of delay, it goes without saying that sufficient cause and reasonable ground may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay. Therefore, without influenced by decision cited during the argument, we have to examine the cause of action for filing the Letters Patent Appeal and cause for delay in filing such Letters Patent Appeal.
The applicant has categorically submitted that they have acted as per the decisions of the Court, but when condition No.4.1.11 has been incorporated in The Electricity Supply Code and that when the Apex Court has granted stay against the judgment of this Court whereby issue regarding recovery of dues from new owner has been sub-judice and that when the present opponents are hard pressing the applicant under different contempt petitions and that when due amount is approximately Rs.22 Crores, they have to take a decision that order of the learned Single Judge is required to be challenged by filing Letters Patent Appeal and, therefore, there is sufficient cause in filing the Letters Patent Appeal, and for all above reasons, including the administrative delay on their part, they are praying to condone the delay in filing such Letters Patent Appeal.
Whereas since opponent has raised different issues, it would be appropriate to deal with them. So far as issue No.1 is concerned, we are satisfied that because of the development, both in statute as well as in judicial process, whereby there is an amendment in The Electricity Supply Code by incorporating particular condition and because the issue becomes sub-judice, in view of the Apex Court s order dated 11.12.2012, practically cause of action for filing the Letters Patent Appeal has arisen only thereafter. Once we came to the conclusion that the cause for filing Letters Patent Appeal has arisen, because of some development after the impugned order, naturally, the same would be sufficient cause for condoning the delay. Therefore, when it is clear that though otherwise the applicant has complied with the impugned judgment and order passed by the learned Single Judge, when it has been necessary for the applicant, because of the new development in form of new rule and order of the Hon ble Supreme Court, there is sufficient cause of action in filing Letters Patent Appeal at present, and for the same reasons, there is sufficient cause for them in filing such Letters Patent Appeal with application to condone delay in preferring Letters Patent Appeal.
So far as issue regarding misrepresentation of certain facts is concerned, since we are not dealing with the main issue regarding right of electricity company to recover the dues or liability of the new owner to pay the dues of old owner, we do not wish to discuss and determine this issue at this juncture since it would unnecessarily hamper the right of both the parties to argue in better manner and details while dealing with the main issue in appropriate proceeding, if delay is not condoned or in the Letters Patent Appeal itself. For the same reasons, issue regarding conscious decision and whether it is material for filing an appeal or to condone the delay in filing the appeal need not required to be discussed or determined at this stage.
However, it would be appropriate to observe that learned advocate for the applicant has raised his objection regarding disclosure of certain facts that certain documents being communication by and between their Officers that how such communication has been procured by the opponent. Against which it is the case of the opponent that such documents were obtained through Right to Information Act and that atleast in some of the communication, applicant itself has conveyed some fact to them. However, for the reasons stated herein above, it would appropriate not to discuss or determine any issue on such point, which may otherwise prejudice the final decision on such points in appropriate proceedings, considering the fact that at present we are simply dealing with the application for condonation of delay and we should restrain ourselves for decision on sufficient cause and reasonable ground for delay and nothing more than that.
So far as the issue regarding applicability of condition No.4.1.11 of the Electricity Supply Code is concerned, the opponent has submitted that such condition does not come in picture at all because in present case, applicant has to comply with the directions of the BIFR since BIFR has directed them to grant power connection without insisting for the payment of dues of previous owners. We are of the opinion that this is also one of the major issue to be decided on its own merits.
Therefore, we are of the opinion that there is cause of action to the applicant to prefer such Letters Patent Appeal, which arises not only from the date of impugned judgment, but also from the date when the Hon ble Apex Court has taken cognizance of the similar issue in SLP (Civil) No.37871 of 2012. We are of clear opinion that while dealing with the application for condonation of delay, the Court has not to enter into the minute facts, details and controversy of the main issue, which includes misrepresentation of facts by any litigant and applicability of amended condition of The Electricity Supply Code. So far as the explanation of delay from August 2010 till November 2012 and conscious decision whether material for filing an appeal are concerned, it would merge into the reasons for sufficient cause to condone the delay, inasmuch as if there is sufficient cause for delay, then decision making process and length of delay is immaterial.
So far as submission regarding non-compliance of impugned order is concerned, we do not agree with such submission inasmuch as if the appellant has to first comply with the directions in the impugned order, then the appeal becomes infructuous even before its filing and, therefore, such concept is misconceived on the part of the opponent.
Before determining the issue relating to sufficient cause finally, it is necessary to deal with several decisions cited by both the parties.
Learned advocate for the opponent Mrs.Sangeeta Pahwa has relied upon following decisions to substantiate her submission that delay should not be condoned in such cases.
23.1 (2010)2 SCC 114 Dalipsingh Vs.State of UP & Ors. - wherein the Hon ble Apex Court has dealt with practice and procedure with reference to abuse of process stating that new creed of dishonest litigants noticed, which is to be deprecated strongly with denial of any relief to such persons. The Apex Court has held that costs should be imposed if party approaching the Court is guilty of suppressing facts and misleading the Court. It is further held that such litigant is not entitled to be heard on merits and cannot invoke the extraordinary/discretionary jurisdiction under Constitution. Such principle can be invoked based upon the facts and circumstances of particular case and, therefore, unless there is a clear determination to that extent, such judgment does not help the opponent in present application for consideration of cause of delay.
23.2 (2012)8 SCC 524 - Cicily Kallarackal Vs. Vehicle Factory wherein the Apex Court has held that if there is no sufficient cause, inordinate delay would amount to substituting the period of limitation prescribed by statute. Therefore, outcome of such judgment is simple that for condonation of delay there must be sufficient cause, thus it cannot be said that delay cannot be condoned even if there is sufficient cause.
23.3 (2012)5 SCC 157 Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai wherien the Apex Court has dealt with Section 5 of the Limitation Act and more particularly expression sufficient cause . It is clarified and discussed with reference to object of Limitation Act and extent of leniency to be shown in public interest in condonation of delay by State machinery. Though High Court s order to condone the delay was set-aside by the Apex Court, it was held that expression sufficient cause should be construed liberally on facts without any hard and fast rules. It is further stated that substantive right of parties should not be ignored because of delay, but a distinction must be made between the delay of few days and inordinate delay causing prejudice to the other side and that no premium can be given to total lethargy or utter negligence. It is further stated that condonation of delay cannot be held as a matter of course by accepting the plea that dismissal of the matter on the ground of limitation will cause injury to public interest. In this reported case, there was delay of seven years and, therefore, the Apex Court has observed as such and refused to condone the delay, more particularly when explanation for such delay was prima-facie found as concocted and causing prejudice to private appellant when the issue was pertaining to demolition. It is further observed that explanation regarding advocate s transfer has no bearing on the issue and that explanation offered was silent about the events and persons involved and credible causes for such delay. Therefore also, though in this reported judgment, delay has not been condoned, it cannot be the rule of law that delay cannot be condoned even if sufficient cause is shown, because in the present case, condonation of delay was practically refused because of the particular facts on record delay of seven years with absence of proper explanation and concocted explanation for condonation of delay. Therefore, unless there is such reason in the case on hand, such decision cannot be applied to every cases blindly without verifying that whether cause for delay is sufficient or not.
23.4 (2012)3 SCC 563 Post Master General & Ors. Vs.Living Media India Ltd. & Ors.
- wherein also the Apex Court has dealt with sufficient cause with reference to Section 5 of the Limitation Act, 1963. The Apex Court has held that if there is non-explanation of sufficient cause, and if there is absence of diligence by Department in prosecuting matter, inspite of another opportunity of filing better affidavit being granted, it was held that condonation of delay is exception and should not be used as an anticipated benefit for government departments. Therefore, again this decision is based upon the particular facts and circumstances on record before the Apex Court wherein the Apex Court has found that there is negligence on the part of the Government and there is non-explanation of sufficient cause. Therefore, only because of such judgment, it cannot be said that delay cannot be condoned in all cases even if sufficient cause is proved.
23.5 (2010)8 SCC 685 Balwant Singh (Dead) Vs. Jagdish Singh and Others wherein the Apex Court has again dealt with express sufficient cause . But, it is categorically stated that sufficient cause implies presence of legal and adequate reasons and there cannot be straitjacket formula uniformly applicable to all cases without reference to the particular facts and circumstances of a given case. Therefore, it is to be decided by the Court whether or not a cause is sufficient and whether it could have been avoided by the party by exercise of due care and attention. Therefore, only because of denial of condonation of delay in few cases would not amount to a straitjacket principle of law that delay cannot be condoned irrespective of sufficient case shown.
23.6 (2010)5 SCC 459 Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr.
- wherein though the Supreme Court has directed probe to be conducted against defaulting officials of respondent Corporation for fixing accountability while denying to condone the delay, the fact remains that in the given case before the Apex Court, there was false statement made to explain the delay and when litigant did not approached the Court with clean hands, the Apex Court had no option, but to take serious view of the matter. However, while defining the term sufficient cause , the Apex Court has categorically observed and held that Courts bestowed with power to condone delay, if sufficient cause is shown and that term sufficient cause elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay and that liberal approach in condoning the delay of short duration with stricter approach in case of inordinate delay is required. It is further stated that certain amount of latitude not impermissible with regard to the State because State represents collective cause of the community and decisions are taken by the Officers/agencies i.e. more than one person. Therefore, even in the case cited by the opponent, the Apex Court has categorically stated in paragraph 15 that no hard and fast rule can be laid down in dealing with the application for condonation of delay.
23.7 (2008)17 SCC 448 Pundlik Jalam Patil (Dead) Vs.Executive Engineer, Jalgaon Medium Project & Anr. - the Apex Court has refused to condone the delay mainly because of the reason that the Court was of the opinion that there was fraud on Court by public authority when false plea was taken with incorrect statement made in application seeking condonation of delay itself and, therefore, it was held that it is sufficient to reject such application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay or not. Therefore, unless there is a proof or pleading regarding fraud committed with the Court proceeding only because of such judgment, it cannot be held that delay cannot be condoned in any case.
23.8 (1997)7 SCC 556 P.K. Ramachandran Vs.State of Kerala & Anr. - wherein the Apex Court has refused to condone the delay because there was no explanation much less reasonable or satisfactory explanation offered by the State for condonation of delay in application for the purpose. Though it was seriously opposed, the same was allowed by the High Court without taking into consideration of all the aspects touching to such subject. However, only for such citation, it cannot be held that delay cannot be condoned even if there is sufficient cause.
23.9 2012(7) SCALE 230 B.Madhuri Goud Vs.B.Damodar Reddy the Apex Court has refused to condone the delay of almost four years to set-aside the ex-parte decree since the ground pleaded for condoning delay was that the documents were misplaced by the office of the advocate and inadvertently tagged with the record of another appeal, but the affidavit of concerned advocate was not filed on record. Therefore, in such case, when cause was not supported by affidavit, Apex Court has decided not to condone the delay. Hence, in absence of such proof, it cannot be said that delay cannot be condoned even if sufficient cause is pleaded and proved on record.
The sum and substance of all above decisions cited by the opponent No.1 makes it clear that there cannot be a straitjacket formula or rule either for condonation of delay or to reject the condonation and that every case is to be decided considering the facts and circumstances of that case only. The only requirement for condonation of delay is that whether there is sufficient cause for the litigant not to initiate the litigation in prescribed time of limitation. In all the cases cited above, there is either inordinate delay, which was never explained or there was misrepresentation or fraud and, therefore, the Apex Court has held that in such cases, delay cannot be condoned. However, it cannot be ignored that in almost all such judgments, the Apex Court has categorically observed and held that if sufficient cause is shown, delay can be condoned and that term sufficient cause elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay.
As against that, if we look into the judgments cited by the applicant, it becomes clear that generally Courts should be reluctant to shut out a consideration of the case on merits on the grounds of limitation or any other similar technicality (AIR 2012 SC 640 - Abdul Gafoor Vs. State of Bihar); if there is delay in filing petition, due to opinion of the advocate on record and the Solicitor General etc., such delay deserves to be condoned (AIR 2011 SC 428 Delhi Development Authority Vs.Bhola Nath Sharma); there is a strong arguable case on behalf of the appellant and, therefore, the Court should decide the matter on merit by giving the expression sufficient cause a pragmatic justice-oriented approach (AIR 2011 SC 977 Union of India Vs.Giani); the meaning of the word sufficient is adequate or enough , inasmuch as may be necessary to answer the purpose intended and, therefore, word sufficient embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application (AIR 2011 SC 1150 Parimal Vs.Veena); if case file has to be routed from various departments before decision to file appeal, it is sufficient cause for condonation of delay (AIR 2010 SC 1445 State of J & K Vs.Mohmad Maqbool Sofi); while deciding application for condonation of delay, Court cannot go into the merits of the case, if averments made in the application is sufficient to condone the delay, there is no hesitation to condone such delay (AIR 2009 SC 1927 State of Jharkhand Vs.Ashok Kumar Chokhani); the expression sufficient cause must receive liberal construction to advance substantial justice even condoning delay of more than 6500 when question of law involved (AIR 2009 SC 2577 State of Karnataka Vs.Y.Moideen Kunhi); and what counts is not length of delay, but sufficiency of cause and that what constitutes sufficient cause cannot be laid down by hard and fast rules [AIR 2009 SC (Supp.) 695 State (NCT of Delhi) Vs.Ahmed Jaan]; delay of more than six years can also be condoned to avoid miscarriage of justice (AIR 1984 SC 1744 O.P. Kathpalia Vs. Lakhmir Singh (Dead) by 3 Judges bench of Apex Court).
Moreover, atleast in AIR 2008 SC 1688 Sinik Security Vs.Sheel Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs.State of M.P. and AIR 2009 SC (Supp.) 195 Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, the Apex Court has condoned inordinate delay (769 days, 589 days and 178 days respectively) even by imposing some costs upon the applicant.
In AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors., the Apex Court has held as under
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The legislature has conferred the power to condone delay by enacting Section 51 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" 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 "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."]
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 malafides. 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 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 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 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 even handed justice on merits in preference to the approach which scuttles a decision on merits If we scrutinize all above referred citations, it becomes clear that in the citations referred by the applicant and discussed in paragraph 21 herein above, the delay was not condoned mainly for the reason that either there is forged statement by the applicant or the cause for delay was shown as loss of paper by the advocate or the main dispute is falling under Special Legislature like Rent Control or Arbitration or Consumer Dispute. Though in some cases, dispute falls within General Law, the second aspect for non-condoning the delay is actual delay in number of days, which is more than 1000 days in 5 cases, out of total 8 cases referred by the opponent and discussed in paragraph 21 above. Unless there is a similar situation i.e. unless the case in hand falls within a special enactment or there is inordinate delay beyond couple of years, none of such referred and cited judgment confirms that delay cannot be condoned even if sufficient cause is shown, more particularly because of the reason that all such judgments are by the Division Bench only and in none of such judgments, any of the citations, which are relied upon and cited by the applicant and prior to the above referred judgments, were ever overruled or distinguished or even referred and not followed in any of the case, which is referred by the opponent. As against that, if we scrutinize the judgments cited by the applicant and referred in paragraph 25 to 27, it becomes clear that atleast those judgments are referred amongst different judgments within them so as to decide that the delay can be condoned if sufficient cause is shown. Whereas atleast decision in O.P.Kathpalia Vs.Lakhmir Singh (Dead) & Ors. (supra) is by the three Judges bench of the Apex Court wherein delay of more than 6 years was condoned observing that otherwise it would result into miscarriage of justice. Therefore, when there is a judgment by the bench of three Judges of the Apex Court that to avoid miscarriage of justice, delay of even 6 years can be condoned and when the judgments referred and cited in paragraphs 25 to 27 are yet not overruled or distinguished in any of the later judgment by the Bench of three Judges , only because the Apex Court has not condoned the delay in some of the cited cases, it cannot be said that delay cannot be condoned in all cases after such judgments even if there is sufficient cause to condone the delay. Thus, in general, if there is sufficient reason to condoned the delay, irrespective of the cited cases, delay can be condoned.
In view of the above facts detailed and discussion, it has been clear that the applicant has a cause of action to file the Letters Patent Appeal in view of the facts and circumstances of the case, more particularly development in law after the impugned judgment and, therefore, the reasons shown by the appellant for condonation of delay are good enough and sufficient. It appeals to this Court to condone such delay considering the overall aspect of the matter, which includes the public interest in as much as applicant has to recover Rs.22 Crores. Further, so as to avoid multiplicity of litigation in view of the fact that the same issue has been pending before the Hon ble Apex Court and, therefore, it is sub-judice. Therefore, if impugned order is confirmed by denying to condone the delay, there would be either multiplicity of litigation or there would be differential treatment because of different judgments. Hence, to avoid such a situation, when the original petitioners are filing repeated applications for contempt, in our view there is no option for the applicant company to prefer such Letters Patent Appeal and for all such reasons, there is sufficient cause to condone the delay. Thus, in our view, the statement in the application for condonation of delay and in rejoinder affidavit, do constitute sufficient cause to condone the delay.
For the foregoing reasons, the application deserves to be allowed as prayed for. The delay caused in filing the Letters Patent Appeal deserves to be condoned.
Rule is made absolute.
(V.M.SAHAI, J.) (S.G.SHAH, J.) (binoy) Page 34 of 34 L>