Kerala High Court
Poothadi Grama Panchayath vs S.C.Sukumaran on 18 November, 2019
Equivalent citations: AIR 2020 (NOC) 429 (KER.), AIRONLINE 2019 KER 642
Author: S.Manikumar
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941
WA.No.262 OF 2018
AGAINST THE ORDER/JUDGMENT IN WPC 8172/2009 DATED 17-02-2012 OF
HIGH COURT OF KERALA
APPELLANT/S:
POOTHADI GRAMA PANCHAYATH
REPRESENTED BY THE SECRETARY (SPECIAL GRADE),
POOTHADI GRAMA PANCHAYATH, KENICHIRA, WAYANAD, PIN -
673 596.
BY ADV. SRI.RAJESH NAIR
RESPONDENT/S:
1 S.C.SUKUMARAN
SAKSHAMKUNNU HOUSE, CHUNDAKOLLI, MANALVAYAL P.O.,
IRULAM, WAYANAD DISTRICT, PIN - 673 121.
2 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, L.A. & SWD,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
3 THE TAHSILDAR (REVENUE RECOVERY)
AMBALAVAYAL, WAYANAD, PIN - 673 121.
OTHER PRESENT:
SENIOR GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU FOR
R2 AND R3
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
C.M Appln 176/2018 and WA 262/2018
"C.R"
JUDGMENT
S.MANIKUMAR, C.J.
Learned Government Pleader takes notice for respondents 2 and 3.
2. Challenge in this writ appeal is to the judgment made in W.P.(C) No.8172/2009 dated 17.2.2012, to quash Ext.P1 recovery proceedings dated 31.7.2008, initiated against the respondent, with delay of 2106 days. Hence, Civil Miscellaneous Application is filed.
Reasons assigned in paragraphs 2 and 3 of the supporting affidavit are extracted below:
"2. It is respectfully submitted that there is a delay of 2106 days in filing this Writ Appeal. Aforesaid Writ Appeal ought to have been filed on or before 19th of March 2012. I took charge as Secretary of the appellant Panchayath on 1.12.2017. After taking charge as the Secretary of the appellant Panchayath, the Deputy Director of the Panchayath directed the appellant to inform on the exact status of file relating to tarring and maintenance of Irulam-Kolery Road under the Jawahar Rozgar Yojna carried out during 1990-91 and 1991-92, since no work was seen to be done as per the records and required me to give details on the matter pertaining to Writ Petition (c)No.8172/2009 on the file of the Hon'ble High Court of Kerala and further directed that the amount due from the first respondent herein should be recovered. It is respectfully submitted that Writ Appeal could 3 C.M Appln 176/2018 and WA 262/2018 not be filed within the prescribed time or immediately thereafter since the appellant Panchayath was facing immediate and pressing public issues and various other problems which required urgent and immediate attention.
3. Since this matter was not on the list of pending files, I along with the other staff of the Panchayath searched the old almirahs in the appellant panchayath and on 2 nd of December 2017 were able to retrieve a file concerning this matter. In one of these files, it was noted that this Hon'ble Court passed a judgment in Writ Petition (c) No.8172/2009 on 17 th day of February 2012 and a photocopy of this judgment was appended to these files. On contacting the lawyer of the appellant panchayath at Ernakulam, he told us that for taking appropriate legal steps, availing a certified copy of the judgment passed in the concerned Writ Petition was necessary. Since the appellant did not have certified copy of the judgment, he told us that he will immediately apply for receiving the certified copy of this judgment on 4 th of December 2017 itself. An application in this regard was submitted on 4th of December 2017. Date of calling of stamp was notified on 6th of December 2017. The stamps were produced on 6th of December 2017 itself. The judgment was ready on 6th of December 2017 itself and the certified copy of the judgment was received by this office on 7 th of December 2012 and communicated to us on that day itself."
3. Prima facie, the reasons are not satisfactory. We also deem it appropriate to consider the following decisions of the Hon'ble Supreme Court with regard to delay in filing:-
"(i) In Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, has been rendered with reference to an application filed for condoning the delay. Principles culled out by the Hon'ble 4 C.M Appln 176/2018 and WA 262/2018 Apex Court are extracted hereunder:-
21. From the aforesaid authorities the principles that can broadly be culled out are:
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.
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 5 C.M Appln 176/2018 and WA 262/2018 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 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.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.
b) 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.
c) 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.
d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-
challant manner requires to be curbed, of course, within legal 6 C.M Appln 176/2018 and WA 262/2018 parameters.
23. Presently to the assertions made in the application for condonation of delay and the asseverations in oppugnation of the same. It may be stated here that the Division Bench while dealing with the application for condonation of delay has also adverted to the legal tenability of the interim order in a matter of appointment and approval of a teacher, and condoned the delay. It does not require Solomon's wisdom to perceive that the delay was colossal. In the application for condonation of delay the appellant before the High Court had stated about the circumstances in which the order came to be passed by the learned single Judge, the order in the earlier contempt petition and the second petition for contempt, the extinction of right of the respondent employee to continue in the post and thereafter proceeded to state the grounds for condonation of delay. We think it apposite to reproduce the grounds: -
"14. That from the record it appears that the order impugned was communicated to the then managing committee including the head master in question and the said fact is totally unknown to the newly elected managing committee as they have been elected on 20.9.2009 and they have been handed over charge on 21.11.09 and to the teacher in charge who has been handed over charge on 1.3.10. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the Ld. Advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over the brief from Mr. Banik, Ld. Advocate to Mr. Baidya, Ld. Advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 07.06.2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application.
15. Having got no other alternative applicant have been advised to 7 C.M Appln 176/2018 and WA 262/2018 prefer an appeal without certified copy and the leave has been prayed for and the same was allowed.
The photocopy of the receipt for application of Xerox certified copy is annexed herewith and marked with letter "A".
24. That the delay occasioned in presenting the said 13 mandamus appeal has taken place due to the aforesaid reasons which was beyond the control of the applicants and was completely unintentional."
(ii) In Indian Statistical Institute v. M/s. Associated Builders and Others, reported in (1978) 1 SCC 483, at paragraph Nos.10 to 13, the Hon'ble Supreme Court has held as follows:
10.... When there is no delay in presenting the objection petition section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under section 5 of the Limitation Act. The application filed before the High Court for condonation of the delay in preferring the objections and the order of the court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure, Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re-presented.
(iii) In a recent judgment of this Court delivered on August 3, 1977 in Mahant Bikram Dass v. Financial Commissioner and Ors.,reported in [(1997) 4 SCC 69], it is pointed out that the petition under section 5 of the Limitation Act seeking to condone the delay in preferring an appeal is different from a petition for excusing the delay in re-presentation.
12. Even in cases where there has been delay in filing of an appeal or objection petition within the time prescribed when the delay is not due to want of bona fides by the petitioner and is due to the party having acted in a particular manner on the wrong advice given by his legal adviser, he cannot be held guilty of negligence so as to disentitle him to plead sufficient cause under section 5 of the Limitation Act. (State of West Bengal v. Administrator, Howrah Municipality & Ors.[(1972) 1 SCC 366].
13. Equally when the petition is not properly stamped the Court has 8 C.M Appln 176/2018 and WA 262/2018 ample powers to extend the time for affixing proper court-fee. Section 149 of the Code of Civil Procedure confers ample power on the High Court to exercise its powers in order to do justice to a litigant where the failure is not due to any fault of the. litigant. (Mahant Ram Das v. Ganga Das [AIR 1961 SC 882].
(iv) In Collector, Land Acquisition, Anantng v. Katiji reported in 1987 AIR 1353, the Hon'ble Supreme Court while considering the provisions of Section 5 of the Limitation Act held that, "the legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by 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 realised that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being defeated. As against his when delay in condoned he 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 9 C.M Appln 176/2018 and WA 262/2018 against each other, cause of substantial justice deserves to be preferred for the other said cannot claim to have vested right in justice being done because of a no-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 grasped that judiciary is respected not on account of its power to legalize injustice an technical grounds but because it is capable or removing in justice and is expected to do so"
(v) In N.Balakrishnan v. M.Krishnamurthy reported in 2008 (228) ELT 162 (SC), the Hon'ble Supreme Court held that, "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 of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court."
4. Though the instant appeal pertains to the delay in filing, we 10 C.M Appln 176/2018 and WA 262/2018 also deem it fit to consider what the Hon'ble Supreme Court, held as to how, a petition, filed to condone the delay in resubmission to be considered.
"In H.Dohil Constructions Co.(P). LTD. v. Nahar Exports LTD. reported in (2015) 1 SCC 680, the Hon'ble Supreme Court held as to how the application filed to condone the representation has to be considered, at paragraphs 19 to 21 and 24 and the same are reproduced hereunder:
"19. Having considered the respective submissions, on this question, we find that the submissions made on behalf of the appellant(s) are forceful. It is true that the delay in filing the appeals was only of 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into Registry. But when an enormous delay of nearly five years occurred in matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.
20. In the case on hand, the delay in refiling was on 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11.04.2008 as disclosed in Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 06-09-2007 and the scrutiny charges were paid on 11-4-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the 11 C.M Appln 176/2018 and WA 262/2018 respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bona fide in the respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of relief of specific performance. We also fail to see as to how Respondent 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow up action to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dorminetibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days' delay involved in filing the appeals.
21. We express our total disinclination to countenance such a stand made on behalf of the respondents. In this respect, the claim of the appellant(s) that serious prejudice would be caused to the appellant(s) merits acceptance. In the rejoinder filed by the appellant(s) to the respondents' counter, the appellant(s) has explained as to how they had to 12 C.M Appln 176/2018 and WA 262/2018 spend a huge amount to upkeep the property by approaching the authorities of Delhi Municipal Corporation, the enormous amount spent to the tune of Rs.28,00,000 by way of house tax from the year 2004 up to this date and various other improvements made in the property during the period wherein the delay in the matter of filing of the appeals and refiling was made by the respondents. Therefore, the principle that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance.
24. When we apply those principles of Bhattacharjee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06-09-2007, the reasons which prevented the respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the 13 C.M Appln 176/2018 and WA 262/2018 respondents not deserving any indulgence by the Court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. "
In the light of the decision of the Hon'ble Supreme Court, stated supra, Civil Miscellaneous Application is dismissed. Consequently, the Writ Appeal is rejected.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE JUDGE SKS/18.11.2019