Madhya Pradesh High Court
The State Of Madhya Pradesh vs Mohd.Kalam Khan on 20 July, 2015
1 WA 45/15
20/7/15
Shri Praveen Niwaskar, learned Govt. Advocate for the
appellant/State.
Shri MPS Raghuvanshi, learned counsel and Shri Ajay
Bhargava, learned counsel for the respondent.
State counsel informs that in compliance of the earlier order, the concerning OIC remained present before this court on 8/7/2015 but on such date, the case was not taken up for one reason or the other and subsequent to that this case is listed today and for want of prior intimation to the OIC through the office of the Additional Advocate General office, the authority of such OIC could not come today for her appearance. Such explanation is taken on record.
Heard on I.A.No.1229/15, appellant's application under Section 5 of the Limitation Act for condoning delay in filing the appeal, as the same is barred by 1031 days as reported by the office. I.A. is further supported by an affidavit of OIC Smt. Shuchismita Saxena, Joint Collector, Gwalior.
The averments of the aforesaid I.A. are disputed on behalf of the respondent's counsel by filing reply stating that whatever cause has been stated in the I.A., the same could not be deemed to be sufficient cause as per requirement of Section 5 of the Limitation Act for condoning the alleged long delay. The reply is further supported by an affidavit of the respondent himself.
State counsel after taking us through the averments of the I.A. alongwith annexed affidavit argued that subsequent to passing impugned order, the departmental process for obtaining 2 WA 45/15 permission to file appeal was started and simultaneously on behalf of the respondent, contempt petition was also filed before this court and in pendency of such contempt petition, sanction/permission to file appeal was given by the authority of the State and thereafter the appeal was drafted and approved by the authority and was filed in the registry of this court on dated 20/2/2015. So in such premises, the various authorities of the departments had consumed time to examine the matter for giving sanction to file appeal and thereby stated long delay had taken place in filing the appeal. In continuation, he said that as per settled proposition of law while dealing with the application under section 5 of the Limitation Act for condoning the delay in filing appeal or any other civil proceedings, the court is bound to examine the stake of litigation also and in such premises instead to dismiss appeal or proceedings on the question of limitation, by adopting a lenient view after condoning the alleged delay with justice oriented approach such matter be considered and decided on merits and prayed to allow the aforesaid I.A. On the other hand, learned counsel Shri MPS Raghuvanshi while responding the aforesaid argument by referring para 2 of his reply of the said I.A., said that immediately after passing the order dated 25/1/2012 by the writ court in W.P. No. 4009/08, he has filed representation alongwith copy of such order in the office of the authorities of the appellant to comply such order. Subsequently, he has also submitted reminders on dated 2/4/2012, 6/12/12 and 10/12/12 and when the direction of the writ court was not complied with 3 WA 45/15 by the authorities of the appellant, then Contempt Petition No.19/15 was filed and notice of such petition was also served on the appellant on 28/4/14. So in such premises it could not be deemed that only on receiving the notice of the contempt petition, the appellant came to know about the impugned order. As such inspite having the knowledge of the order for a longer period the appeal was not filed, such conduct of the authority of the appellant in concealing the fact regarding aforesaid representation as well as reminders to comply the directions of the writ court, the appellant authority is not entitled to get relief for condonation of aforesaid long delay in filing this appeal. As such, whatever cause has been stated in the application, in the aforesaid circumstance, could not be treated to be sufficient cause as per requirement of the settled proposition of law established for condoning the delay in filing any appeal or proceedings.
He has also opposed aforesaid prayer on account of inconsistent pleadings of the appellant-department, according to which, at one side the State authority said that before receiving the notice of contempt petition, the order of the writ court was not in their knowledge and on the other hand, it is stated that due to department process, long time has been spent in obtaining the sanction to file appeal, therefore, on such count also, the appellant is not entitled to any relief and prayed for dismissal of the I.A. In support of his contention, he has placed reliance on the decisions of the Apex Court in the matters of Postmaster General and others Vs. Living Media India 4 WA 45/15 Limited and another reported in (2012) 3 SCC 563, Amalendu Kumar Bera and others Vs. State of West Bengal reported in (2013) 4 SCC 52 and State of Uttar Pradesh through Executive Engineer & another Vs. Amar Nath Yadav reported in (2014) 2 SCC 422.
Having heard counsel, keeping in view the arguments advanced, we have carefully gone through the averments of the application as well as reply alongwith record of the writ court and the impugned order, so also the case laws cited by the counsel for the respondent.
Before proceeding further, we would like to emphasize the principles laid down by the Apex court as well as this court on different occasions while considering the application under Section 5 of the Limitation Act to condone the delay in filing the appeal or any other civil proceedings.
In the matter of M.K. Prasad Vs. P. Arumugam reported in (2001) 6 SCC 176 while dealing with the application under section 5 of the Limitation Act in the matter of proceedings arising out of the case of Order 9 Rule 13 CPC , the Apex Court has held as under:-
In construing Section 5 of the Limitation Act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section.
Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct 5 WA 45/15 does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs.
(Placitinum) Besides the aforesaid case-law, such question was also answered by the Apex Court in the matter of Esha Bhattachargjee Vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 649 in which following principles to consider such question has been laid down as under:-
"The principles applicable to an application for condonation of delay are as follows:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
6 WA 45/15(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the 7 WA 45/15 courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
(xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner 8 WA 45/15 requires to be curbed, of course, within legal parameters."
On arising occasion, taking into consideration the aforesaid case-law in M.K. Prasad (supra), while dealing with the application under Section 5 of the Limitation Act, such question was also answered by one of us (Justice U.C.Maheshwari) while sitting in single bench in the matter of Riyaj Khan & others Vs. Kasam Khan & others reported in 2013(2) MPLJ 110 in para 11 it has been held as under:
"11. In view of the aforesaid for the sake of arguments, if it is deemed that there was mistake on the part of respondent nos. 1 and 2 herein in filing the proceeding for restoration of the civil suit as, the same was filed at belated stage or till some extent, they have failed to prove the sufficient cause for condoning the delay under Section 5 of the Limitation Act even keeping in view the stake of litigation in which dispute of the title of the immovable property was involved, the trial court was bound to consider and allow such application of Section 5 of the Limitation Act as well as application of Order 9, Rule 9 of the CPC but the same was dismissed under wrong premises. In the light of aforesaid legal position, the appellate court has not committed any error in rejecting the order of the trial court and allowing the applications of the respondent nos. 1 and 2."
In view of the aforesaid principles laid down by the Apex Court, followed by this court, if the case at hand is examined then in view of the stake of litigation of the impugned case, such principles are directly applicable to the case and impugned 9 WA 45/15 application deserves to be allowed for condoning the alleged delay in filing this writ appeal.
Apart the aforesaid, for the sake of arguments, if it is deemed that there is long delay in filing the appeal and the same has not been explained with specific cause and the averments day-today basis, even then in the light of the aforesaid decision of the Apex Court in the case of M.K. Prasad (supra), in view of the stake of litigation, according to which the burden of payment of huge sum to the respondent for the period for which he had been working in the department has been given, the impugned order requires re-consideration at this stage in the appeal. So, in such premises also by adopting lenient view with justice oriented approach, keeping in view the principle that justice should not be lost in technicalities, we deemed fit to condone the alleged delay in filing the appeal by allowing the aforesaid I.A. So far as the case-laws cited by the respondent's counsel are concerned, this bench did not have any dispute in respect of the principles laid down in those cases but in view of the aforesaid principles laid down by the Apex court, followed by this court on earlier occasion, such cited cases of the respondent's counsel are not helping to the respondent in the present scenario.
In the aforesaid premises, by allowing aforesaid I.A.No.1229/15, the entire delay of 1031 days in filing this appeal, is hereby condoned.
On asking the appellant's counsel to make submission on 10 WA 45/15 the question of admission as well as on the stay application on which he seeks for and is granted short adjournment to prepare the matter.
Let this matter be placed for consideration of the stay application on 28/7/2015 as prayed by the State counsel.
(U.C.Maheshwari) (B.D. Rathi)
Judge Judge
(Bu)