Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt. Leeladevi on 3 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 3 rd OF MAY, 2024
SECOND APPEAL No. 1217 of 2022
BETWEEN:-
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR CHHATARPUR DISTRICT
CHHATARPUR M.P. (MADHYA PRADESH)
2. COLLECTOR, DISTT. CHHATARPUR, THROUGH
CASE INCHARGE TEHSILDAR TEHSIL NOWGAON,
DISTRICT CHHATARPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI A.S. BAGHEL - GOVERNMENT ADVOCATE )
AND
SMT. LEELADEVI W/O SUNDERLAL GUPTA, AGED
ABOUT 58 YEARS, R/O NOWGAON, TEHSIL NOWGAON,
DISTRICT CHHATARPUR M.P. (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI BHAVIL PANDEY - ADVOCATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
I.A. No. 5358 of 2022 is an application under Section 5 of the Limitation Act.
2. It is submitted that this appeal is delayed by 2765 days. Reason stated is that circumstances were beyond control. It is submitted that First Appellate Court passed the judgment and decree dated 15.07.2014 (Annexure A/1) but counsel for the appellant did not inform the appellants regarding dismissal of the Signature Not Verified First Appeal. It is submitted that when the respondent/ plaintiff filed an Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 2 application on 12.04.2021 before the Tahsildar Nowgaon, District Chhatarpur for recording her name in the suit property then only the appellant/ defendant came to the conclusion to file this second appeal before this Court. Copy of order-sheet of case No. 21/B-121/20201-22 is pending in the Court of Tahsildar, Nowgaon, District Chhatarpur along with an application filed by the respondent/ plaintiff dated 8.4.2021 which is filed as Document IA/1.
3. OIC was appointed on 10.03.2022 by Collector, Chattarpur who immediately collected the record from the Trial Court and approached the Advocate General Office for preparation of Second Appeal. Then COVID started and matter was delayed, therefore, till February, 2022 delay was condoned. After collecting the paper, OIC approached the office on 22.03.2022 for preparation of the appeal and filed this appeal along with an application for condonation of delay.
4. It is seen that learned Second Civil Judge, Class I, Chattarpur in Civil Suit No. 142A/98 (Smt. Leeladevi Vs. State of M.P. and another) vide judgment and decree dated 29.03.2001 decreed the suit of the plaintiff. The appeal of the State was decided in Civil Appeal No. 24-A/14 (State of M.P. Vs. Leeladevi) whereby the application under Section 5 of the Limitation Act was dismissed vide order dated 15.07.2014.
5. Learned counsel for the respondent submits that delay has not been properly explained.
6. It is submitted by the learned counsel for the respondent that in the order dated 15.07.2014 in paragraphs No. 14 to 18 regarding Ex. D/1 Tahsildar Naugaon Rajesh Shukla has admitted on oath (Ex. D-1), therefore, learned Court held that plaintiff Leeladevi on the basis of judgment dated 29.03.2001 Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 3 has filed an application for mutation dated 22.03.2004, therefore, the Court held that State Government was in the knowledge of the decree dated 29.03.2001, therefore, the argument of the respondent is that the State Government is making false statement against the record, even without perusal of the judgment.
7. Learned counsel for the State submits that this Court cannot look to the ground of rejection in order dated 15.07.2014 in Civil Appeal No. 24-A/14.
8. Learned Government Advocate for the State relied on the judgment in the case of Sheo Raj Singh ( deceased) through L.Rs. and others Vs. Unon of India, (2023)10 SCC 531. Emphasis is placed on paragraph 29 to 33 and 41 which are reproduced below :-
"29. We have heard Mr Sharma and Mr Sen, appearing on behalf of the appellants and the respondents, respectively, and perused the order under challenge.
30. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial.
3 1 . Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an "explanation" and an "excuse". An "explanation" is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must, however, be taken to distinguish an "explanation" from an "excuse". Although people tend to see "explanation" and "excuse" as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. 3 2 . An "excuse" is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an "excuse" would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts.Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 4
At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication.
33. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly well-settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v . Tammanasa [Manjunath Anandappa v. Tammanasa, (2003) 10 SCC 390] , which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 : 1980 SCC (L&S) 197] where it has been held that:
"an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".
41. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision [Union of India v. Sheo Raj, 2011 SCC OnLine Del 5511] to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."
9. Learned counsel for the State also relied on the judgment of Shalikram and others Vs. Keshav reported in (2012)1 MPHT 409 wherein Hon'ble Co-ordinate Bench of this Court has held that First Appeal should normally not be rejected on the ground of limitation and in that case, the appeal was from a Tribal District and considering the circumstances as available in that case, it was held that First Appeal is filed as a matter of right, therefore, the appeal should not have been dismissed for delay on technical grounds of delay Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 5 and in the facts and circumstances of the case, the case was remanded to the First Appellate Court to consider the appeal as within time and decide it on merits.
10. While learned counsel for the respondent relies on the judgment of Hon'ble Supreme Court in State of U.P. and others Vs. Satish Chandra Shivhare 2022 SCC Online 2151 specifically paragraphs 17, 18, 21 and 22 which are reproduced as below :-
"17. The explanation as given in the affidavit in support of the application for condonation of delay filed by the Petitioners in the High Court does not make out sufficient cause for condonation of the inordinate delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Act. The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing of files and the rigmarole of procedures cannot be accepted as sufficient cause. The Government Departments are under an obligation to exercise due diligence to ensure that their right to initiate legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved. 1 8 . As held by this Court in Basawaraj v. Special Land Acquisition Officer:
"9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336], Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953], Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150 ] and Maniben Devraj Shah v. Municipal Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 6 Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629].) 2 1 . The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant.
22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."
11. Recently, Hon'ble Supreme Court in the case of Pathapati Subba Reddy (Died) by LRs and others Vs. The Special Deputy Collector in Special Leave Petition (Civil) No. 31248 of 2018 vide judgment dated 8.4.2014 Hon'ble Supreme Court in para 26 has held below :-
"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 7 power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
12. Therefore, after considering the arguments of both the Courts and perusal of the record, in the facts and circumstances of the case, it is seen that State in this case has been continuously negligent and no ground is made out on which delay can be condoned. In fact, there is no specific pleading with regard to the date, names of officers mentioned to identify whether these are bald pleadings or have any substance because it is only when specific dates, correspondence along with dispatch number and receipt number are mentioned then this Court would have been in a position to consider whether there was any genuine cause but since State has chosen not to give the details which is must in the Second Appeal, looking to the fact that appeal is delayed by 2765 days i.e. more than 7 years, therefore, I.A. No. 5358 of 2022 is dismissed. Consequently, the second appeal is also dismissed.
13. Let copy of this order be sent to the concerned Court along with record.
(AVANINDRA KUMAR SINGH) JUDGE Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM 8 VSG Signature Not Verified Signed by: VIKRAM SINGH Signing time: 5/28/2024 1:45:37 PM