Gujarat High Court
Uttar Gujarat Vij Company vs Ghelabhai Varvabhai Raval on 13 December, 2013
Author: S.G.Shah
Bench: S.G.Shah
UTTAR GUJARAT VIJ COMPANY LTDV/SGHELABHAI VARVABHAI RAVAL C/CA/11343/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 11343 of 2013 In FIRST APPEAL (STAMP NUMBER) NO. 3114 of 2013 FOR APPROVAL AND SIGNATURE:
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 ?
============================================================= UTTAR GUJARAT VIJ COMPANY LTD & 2....Applicant(s) Versus GHELABHAI VARVABHAI RAVAL & 4....Respondent(s) ============================================================= Appearance:
MR DIPAK R DAVE, ADVOCATE for the Applicant(s) No. 1 - 3 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 - 5 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 13/12/2013 CAV JUDGEMNT Heard Ld. Advocate Mr. Dipak R Dave for the applicant and Ld. Advocate Mr. Mehul S Shah for the opponent.
2 The applicant electricity company wants to challenge the judgment and order dated 31/12/2012 passed by the 2nd Addl. Senior Civil Judge, Kalol, in Special Civil Suit No. 115 of 2010, which was decreed in favour of the opponent directing the applicant to pay them Rs.5,60,000/- with 9% interest from the date of suit till its realization. The opponents plaintiffs have filed the suit for claiming compensation of Rs.12,25,000/- because of death of Prahladbhai Ghelabhai Raval due to electrofusion when live electric cable of the applicants company was lying on the road of the village.
3 There is delay of 191 days in filing such appeal by the applicants and, therefore, present application is preferred to condone such delay.
4 Generally, Courts are liberal in condoning the delay on consideration that dispute between the parties shall be decided on its own merits rather than general technicalities, more particularly if such technicality does not defeat the right of any party.
5 However, the opponents being legal heirs of the victim and in whose favour there is a money decree, which makes them entitled to recover the amount of compensation for their livelihood, have resisted the application even if condonation of delay, probably and mainly because of the reason that with First Appeal, there is an application to stay execution of the decree and, therefore, heirs of the deceased, who may not be at fault and who need financial support, have no option but to oppose the application even for condonation of delay. Therefore, the opponents have filed affidavit-in-reply and objected to condone the delay, as prayed for.
6 When there is a contest, relevant pleadings and factual details are required to be dealt with before coming to any specific conclusion.
7 Perusal of record, makes it clear that the impugned judgment and decree is dated 31/12/2012. However, as pointed out by the respondents, certified copy of such judgment and decree has been prayed for only on 18/4/2013 i.e. after period of limitation being 90 days, which applies on or about 1/4/2013. Such certified copy was ready on 28/6/2013 and delivered on 29/6/2013; whereas though appeal was presented on 8/10/2013, which could be registered only on 18/10/2013 after removal of office objections. If such office objections are pertaining to Court fees, then practically payment of court fees would be considered as date of filing and registration and, therefore, total number of delay may be 9 days more. However, benefit of time lapsed in getting certified copy shall be required to be excluded pursuant to provisions of sub-section [2] of section 12 of the Limitation Act. Therefore, the actual delay is probably less than what is disclosed in the pleadings and prayer for condonation.
8 Ld. Advocate Mr. Dave for the applicants has submitted that the law of limitation is generous and that no party should be saddled with liability without offering an opportunity to submit his case only on such ground of technicalities and that in given circumstances, it is difficult for the Government and Semi-Government authorities to cope up with the period of limitation since their administrative procedure takes time in completing several procedure before filing any litigation like present appeal and that for such reason, if there is a delay in filing an appeal, it cannot be said that such delay is deliberate on the part of the applicants and that when condonation of delay would not damage the rights of the opponents and there will be no adverse effect if delay is condoned in absence of prejudice caused to the opponents, there is no reason to deny the condonation, as prayed for.
9 Pursuant to reply filed by the opponents, the applicants have filed affidavit-in-rejoinder on 5/12/2013 denying the averments of affidavit-in-reply and disclosing that delay has taken [;ace on behalf of the advocate for applying certified copy of the impugned order and in taking decision to file an appeal by the competent authority of the applicants after getting certified copy because relevant papers were not available with the competent authority at the relevant time. So the affidavit-in-rejoinder also discloses several other aspects which shall be taken care of while referring to reply itself. However, it is material to note here that now the applicants have come forward with specific disclosure on oath by its Deputy Engineer that now applicants have deposited the amount including interest on 4/11/2013. Therefore, it is contended that no loss has been caused to the opponents even if some delay has been caused in the matter.
10 Ld. Advocate Mr. Dave for the applicants is relying upon the judgment of the Hon ble Apex Court rendered in the case of Shakuntala Devi Jain v. Kuntal Kumari reported in AIR 1969 SC 575, Collector, Land Acquisition, Anantnag v. Katiji reported in AIR 1987 SC 1353 and one latest judgment rendered by the Hon ble Apex Court in the case of Manoharan v. Sivarajan rendered in Civil Appeal No. 10581 of 2013.
11 In the case of Manoharan [supra], the Hon ble Apex Court has recently, after referring several other cases, reproduced the principles laid down by the Hon ble Apex Court in the case of Collector, Land Acquisition, Anbantnag [supra]. Ld. Advocate for the applicants has mainly pressed and relied upon the determination by the Hon ble Apex Court in such latest judgment in para 9, wherein para from the judgment of State of Haryana v. Chandra Mani reported in 2002 143 ELT 249 is reproduced, which reads as under :
The expression sufficient cause should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day s delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach injustice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorize the officers to take a decision to give appropriate permission for settlement. In the event of decision to file the appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.
However, in the same para, the Hon ble Apex Court has also reproduced the observations made by the Hon ble Apex Court in the case reported in 2008 [228] ELT 162 [names of the parties are probably not disclosed in the reported judgment for such citation]. However, reproduction made by the Hon ble Apex Court reads as under :
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 uncontainable 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 ofr 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.
With such observation, the Hon ble Apex Court has allowed the appeal by condoning the delay in filing appeal before the High Court.
12 Ld. Advocate Mr. Dave for the applicants is also relying upon the judgment rendered in Civil Application No. 9031/2013 dated 26/11/2013, wherein delay of 160 days caused in filing appeal was condoned by this Court. Therefore, it is submitted by the applicant that irrespective of number of days, the delay should be condoned since such delay is bonafide on the part of the applicants company, which has taken some time to handle the matter after impugned judgment for filing an appeal.
13 As against that, Mr. Mehul S Shah, Ld. Advocate for the opponents has vehemently argued and opposed to condone the delay submitting that the applicant has never applied for certified copy during the prescribed period of limitation of 90 days from the date of judgment and decree being 31/12/2012 i.e. till 1/4/2013. Therefore, practically there is no reason to condone the delay since there was no decision or desire to file an appeal till the prescribed period of limitation. It is further contended that after period of limitation for filing an appeal, when respondents have filed an execution petition before the lower Court on 4/3/2013, the trial Court has issued notice making it returnable on 30/4/2013 and though process was served upon the applicant, the applicant has chosen not to appear before the executing Court. Thereupon, the executing Court had adjourned the execution proceedings further so as to enable the present applicant to appear and to explain about their stand. It is further submitted that even thereafter the applicant did not appear before the executing Court and hence executing Court was obliged to issue a Jangam warrant on 26/6/2013 i.e. almost after six months from the date of judgment and decree and when such Jangam warrant could not be served, fresh Jangam warrant was issued on or around 26/8/2013. It is further contended that thereupon when both the Jangam warrants were served, the applicants have given undertaking to the serving officer that they will deposit the decretal amount latest by 30/10/2013. It is further submitted that the applicants have failed to pay the amount before 30/10/2013 and meanwhile without disclosing such factual details, they have preferred this appeal on 8/10/2013, which is registered only on 17/10/2013, wherein RULE was issued on 21/10/2013. It is further submitted by Mr. Shah for the opponents that there is material contradiction and thereby there is false statement on oath by the applicants for getting favourable order in their favour inasmuch as though there is not a single whisper about the factual details as narrated hereinabove in the application for condonation of delay, what is stated in such application is only to the effect that there is procedural delay in managing the papers for filing an appeal and mainly for getting an opinion of the advocate to prefer an appeal. It is further submitted that after filing affidavit-in-reply, the applicants have changed their stand and the same Deputy Engineer, who has filed affidavit 8/10/2013, has now changed his version in his affidavit-in-rejoinder dated 5/12/2013 contending that the applicant is a Government company and at no point of time it has abandoned the cause and that opinion of the advocate of the company engaged before the trial Court received only on 7/7/2013 and thereafter, some delay has taken place by the advocate for applying certified copy of the impugned order and further delay was caused in getting opinion of the advocate which is forwarded for consideration of the competent authority, which decided to file an appeal, on 3/9/2013. It is further submitted that some of the relevant papers for filing appeal were not available at such point of time and after collecting such relevant papers from the advocate of the trial Court, appeal was filed in the month of October 2013. It is further stated in such affidavit that because of work pressure, he could not remain present before the executing Court and it is further alleged that the bailiff, who came to serve Jangam warrant, insisted that unless endorsement to the effect that payment will be made , bailiff will attach the property of the company which may result into chaos in the form of failure of power supply and distribution and therefore, he was left with no option but to furnish undertaking and in turn to honour the same. However, it is also alleged that the executing Court has refused to defer the hearing so as to avoid Jangam warrant. He has further deposed about his difficulty within his office for which we are not concerned.
14 Ld. Advocate Mr. Shah for the opponents is relying upon the judgment rendered in the case of Amalendu Kumar Bera v. State of West Bengal reported in 2013 [4] SCALE 639 and Basawaraj v.
Special Land Acquisition officer reported in 2013 [10] SCALE 391.
In the case of Amalendu Kumar Bera [supra] the Hon ble Apex Court has observed as under.
Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of sufficient cause delay shall not be condoned.
There is no dispute that the expression sufficient cause should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for the explaining every days delay. However, it is equally well settled that the Courts albeit liberally considered the prayer for condonation of delay but in some cases the Court may refuse to condone the delay in as much as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in the case of Union of India vs. Nirpen Sharma, 2011 AIR(SC) 1237 the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant-Union of India. The High Court refused to condone the delay on the ground that the appellant-Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress, the way the State conduct the cases regularly in filing the appeal after the same became operational and barred by limitation.
In Basawaraj s case [supra], the Hon ble Apex Court has observed as under:
12.
It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex"
which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale.
According to Halsbury's Laws of England, Vol. 24, p. 181:
"330. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence".
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or laches.
(See:
Popat and Kotecha Property v. State Bank of India Staff Assn., 2005 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., 1973 AIR(SC) 2537; and Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, 2008 17 SCC 448).
14. In P. Ramachandra Rao v. State of Karnataka, 2002 AIR(SC) 1856, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in A. R. Antulay v. R. S. Nayak, 1992 AIR(SC) 1701.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.
15 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.
16 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.
17 Before determining the issue relating to sufficient cause finally, it is necessary to deal with several decisions concerning the subject.
18 (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 Courts 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. It is further observed that explanation regarding advocates 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.
19 (2012)3 SCC 563 Post Master General & Ors. Vs.Living Media India Ltd. & Ors.
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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.
20 (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.
21 (2010)5 SCC 459 Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr.
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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. 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.
22 The sum and substance of all above decisions make 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.
23 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).
24 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.
25 In Collector, Land Acquisition, Anantnag [supra], the Apex Court has held as under -
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.
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 26 If we scrutinize all above referred citations, it becomes clear that 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. 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 above 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.
27 Therefore, though there are some judgments of the Hon ble Supreme Court confirming that delay should not be condoned mechanically, considering the facts and circumstances of the case, delay can be condoned if sufficient cause is shown. Since phrase sufficient cause is not specifically defined under the statute, its consideration may vary from case to case relying upon the facts, circumstances and dispute involved in the matter. In the present case, the dispute is pertaining to right to compensation by the respondents in whose favour there is a decree by the first trial Court and, therefore, it cannot be said that the applicants do not have a good case even if not on merits of their liability, then at-least for quantum of compensation. However, when the applicants have already deposited the entire decretal amount, there would be no prejudice to the respondents if delay is condoned and grievance of the applicants is adjudicated on merits rather than dismissing the appeal on technical ground of limitation. Then the only point or issue remains would be with reference to the harassment or financial burden over the respondents to defend such litigation. Therefore, it would be appropriate to condone the delay with suitable costs.
28 I have heard the learned counsel for the parties and have also examined the impugned order as well as the application for condonation of delay in filing the appeal by the petitioner. After hearing the learned counsel for the parties and going through the averments made in the application for condonation of delay, I am of the view that the facts stated in the said application do constitute sufficient cause for condoning the delay in filing the appeal. The application for condonation of delay in filing the appeal is allowed on payment of costs of Rs.15,000/- [Rupees fifteen thousand only] to the respondents within a month from the date of this order. In the event, the costs of Rs. 15,000/- is not paid or deposited within the time specified above, the impugned order shall stand confirmed and the application for condonation of delay shall stand rejected.
Rule is made absolute.
(S.G.SHAH, J.) * Pansala.
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