Madras High Court
The Secretary vs $Dr.K.Mohan on 10 July, 2015
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, M.Venugopal
!IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 10/07/2015 *CORAM The Hon'ble Mr.Justice SATISH K. AGNIHOTRI And The Hon'ble Mr.Justice M.VENUGOPAL +M.P.No.1 of 2014 in W.A.SR.No.62198 of 2014 #The Secretary Vs. $Dr.K.Mohan !For Appellant: P.S.Sivashanmugasundaram ^For Respondent: L.Chandrakumar :ORDER
[Order of the Court was made by M.VENUGOPAL, J.] The Petitioner/Appellant has preferred the instant Miscellaneous Petition praying for passing of an order by this Court to condone the delay of 1246 days in filing the Writ Appeal.
2.According to the Learned Special Government Pleader for the Appellant, the reasons for the delay of 1246 days in preferring the present Writ Appeal are
(a) Due to obtaining of an opinion of the Administrative Department, namely, Personnel and Administrative Reforms and Finance Department.
(b) That the High Court Order was received by the Government on 03.03.2011 and after obtaining Opinion from the Government Pleader as to whether it is a fit case for preferring an appeal and that the Government Pleader's opinion was received on 15.09.2011 and moreover the documents were sent for approval of the Government Pleader on 27.09.2011. Added further, the bundle was misplaced/mingled with another bundles, which took so many months to trace out and received on 27.09.2013.
(c) After examining the feasibility of preferring an Appeal against the Order of this Court passed in the Writ Petition, the Government had finally arrived at a decision to prefer an Writ Appeal as against the Order in consultation with the Advisory Department of Secretariat. As such, the delay that had occurred in the subject matter in issue is neither willful nor wanton, but, due to the aforesaid Administrative reasons. Also the delay in question is mainly attributed to the procedures to be followed.
3.It is to be pertinently point out by this Court that no presumption can be attached to the deliberate causation for delay, but, gross negligence on the part of the litigant is to be taken note of. In reality, the lack of bonafides attractable to the party seeking condonation of delay is a relevant and significant fact.
4.It is to be remembered that there is a difference between an inordinate delay and a delay of short duration or few days. In the case of a former, the Principle of 'Prejudice' is attracted. However, in the case of latter, it may not be attracted. The former one attracts sterner approach, whereas the latter calls for a liberal delineation.
5.At this juncture, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another reported in (2015) 1 Supreme Court Cases 680 at Special Page 681 whereby and whereunder it is held as follows:-
...It is true that the delay in filing the appeals was only 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 the registry. But when an enormous delay of nearly five years occurred in the 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.
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. It is not possible to countenance such a stand made on behalf of the respondents. In this context the maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand....
6.On a careful consideration of the Appellant's contentions and also this Court taking note of the reasons attributed on the part of the Petitioner/Appellant in regard to the delay of 1246 days that had occurred in regard to the presentation of the Writ Appeal in S.R.Stage, this Court is of the considered view that the reasons ascribed by the Petitioner/Appellant for the delay that had occurred in the subject matter in issue are not bonafide, besides the same being in a casual manner as such, this Court opines that the Petitioner/Appellant had not shown enough diligence in filing the present Writ Appeal in time.
7.To put it succinctly, the reasons mentioned in the affidavit in M.P.No.1 of 2014 in W.A.Sr.No.62198 of 2014 smack of bonafides and the same are unacceptable to the subjective satisfaction of this Court. Viewed in that perspective, this Court is not in a position to exercise its discretion to condone the delay of 1246 days in question and consequently dismisses the Miscellaneous Petition in the interest of justice.
In the result, the Miscellaneous Petition No.1 of 2014 in W.A.Sr.No.62198 of 2014 is dismissed for the reasons assigned in this Petition. There will be no order as to costs. Consequently, W.A.Sr.No.62198 of 2014 is rejected.
[S.K.A., J.] [M.V., J.]
10.07.2015
ssd
SATISH K. AGNIHOTRI , J.
and
M.VENUGOPAL, J.
M.P.No.1 of 2014 in
W.A.SR.No.62198 of 2014
10.07.2015