Andhra HC (Pre-Telangana)
State Of Andhra Pradesh And Another vs Allu Swaminaidu And 35 Others on 24 December, 1999
Equivalent citations: 2000(1)ALD677, 2000(1)ALT444
ORDER
1. This revision is filed questioning the order dated 29-4-1999 passed in IA No.767 of 1994 in OS No.570 of 1988 on the file of the Junior Civil Judge, Salur.
2. The defendants in the suit are the petitioners herein. The respondents/plaintiffs filed the suit for a direction against the petitioners/defendants to incorporate the orders of the Special Deputy Tahsildar (Inams) dated 6-9-1960 and to fix the ryotwari assessment for the land of an extent of Ac.67.32 cts., mentioned as A schedule by means of mandatory injunction and to restrain the petitioners from interfering with B schedule lands with standing crops. At the stage when the matter stood for filing the written statement the petitioners/ defendants could not file written statement and the Court below awarded costs to the respondents/plaintiffs and posted the matter on 24-7-1990. Since no written statement was filed the Court below passed the ex parte decree on 24-7-1990.
3. The petitioners/defendants filed IA No.767 of 1994 for condoning the delay of 1539 days in filing the petition under Order IX, Rule 13 of Code of Civil Procedure to set aside the ex parte decree dated 24-7-1990. The said delay was sought to be condoned on the ground that on 24-7-1990 the petitioners could not send their clerk to their Counsel for payment of costs due to pressure of work in their office, and their Counsel also could not represent before the Court. The petitioners came to know about the ex parte decree only then notices in EP were served. Immediately serious attempts were made to trace out the records in their office in order to prepare the written statement to file along with petition under Order IX, Rule 13 CPC. Due to communication gap and non-available of records the said petition could not be filed in time. The application was filed on 7-11-1994. The said application was dismissed after examining the parties. During the course of enquiry it was deposed on behalf of the petitioners that due to bifurcation of districts records were misplaced and as a result of which the written statement could not be filed in time. The witness on behalf of the petitioners further deposed that originally Vizianagaram District was part and parcel of Srikakulam District and the records relating to Vizianagaram District were misplaced at the time of its formation and records could not traced and only when the records are traced out, they could file the said application. It was revealed in the cross-examination of the said witness that the petitioners/ defendants had the knowledge of the decree even prior to 1994 but since records could not be traced out they did not choose to file a petition to set aside the ex parte decree. It was also admitted that only when execution petition seeking execution of the decree was field they came to know about the said decree. In view of the above deposition the Court below has come to the conclusion that the defendants had the knowledge of the decree and the reason that records could not be traced out was not satisfactory and acceptable.
4. It is interesting to note that though the IA was filed in the year 1994 the same was disposed of on 29-4-1999. The lower Court did not disclose the reasons for keeping the IA for more than 4 years.
5. At a glance of the order of the lower Court and the affidavit filed by the Mandal Revenue Officer, who is the responsible revenue official shows that the reasoning of the lower Court in dismissing the IA is convincing and the reasoning shown by the petitioners/defendants is not convincing.
6. Now, along with the present revision the Mandal Revenue Officer, who is the second defendant in the suit has filed an affidavit stating that the suit was filed to pass a decree by directing the petitioner/ defendants- to incorporate the orders of the Special Deputy Tahsildar (Inams) dated 6-7-1960 and to fix the ryotwari assessment for the lands of an extent of Ac.67.32 cts., mentioned as A schedule by means of mandatory injunction and to restrain the petitioners from interfering with B schedule lands with standing crops. It is further stated that total extent of Ac.67.32 cts., of A schedule land includes Ac.25.25 cts., of B schedule also. The said Ac.25.25 cts., is a Tank Poramboke as per the revenue records right from 1930 which could not have been granted to any one by way of pattas for want of jurisdiction in respect of Tank Porambokes. There is no provision in the Inams Abolition Act to grant joint patta to different individuals. Therefore, only in the year 1988 individual pattas were granted in respect of 42.07 cts. of land leaving Ac.25.25 cts., of land which is a Tank Poramboke as per the revenue records. Under this tank there is a registered ayacut of Ac. 12.50 cts. The said land was transferred to the Irrigation Department and after such transfer the extent of Ayacut was increased to 75 acres. Therefore, pattas were never granted in respect of Ac.25.25 cts. It is stated that the real and immediate affected parties are the ryots of the ayacut. The Vizianagaram District was carved out from Visakhapatnam and Srikakulam Districts in the year 1979 and the records were not transferred due to mixing up these records with the records of the two districts and consequently written statement could not be filed on 24-7-1990. They came to know about the decree only after the EP was filed. It appears that proper communication from the concerned Assistant Government Pleader was also doubtful. Finally it is stated that under the Tank in Sy.No.191 (old Sy.No.18) an ayacut of Ac.75 is existing which is the disputed land and the immediate affected are ayacutdars, who were not made as parties. Therefore, it was pleaded that if a mandatory injunction is granted against the petitioners/ defendants by incorporating the names of the respondents/plaintiffs the public interest would suffer and the ayacutdars will be a deprived of water to their lands. Hence, the learned Government Pleader for arbitration in the light of the above facts prays that IA No.767 of 1994 be allowed after condoning the delay of 1539 days in the interest of public.
7. Sri Sadasiva Reddy, learned Counsel appearing for the respondents/ plaintiff submits that the Court below was absolutely justified in rejecting the application filed by the petitioners/ defendants, since the reasons shown are not at all satisfactory. He further submits that just because the delay was caused by the State for administrative reasons the same cannot be a ground for condoning the delay where no proper explanation was offered. Therefore, he contends that the State cannot be given preference in matters touching the law of limitation.
8. The point for consideration in this revision is, whether the delay of 1539 days in filing the application under Order IX Rule 13 of Code of Civil Procedure for setting aside the ex parte decree can be condoned under the given circumstances.
9. The learned Counsel for the respondents relies on the judgment reported by the Apex Court in P.K. Ramachandran v. State of Kerala, . In the said case the reason shown for the delay in filing the appeal was that:
"at that time the Advocate-General Office was fed up with so many arbitration matters equal important to this case were pending for consideration as per the directions of the Advocate-General."
However, it was noted by Their Lordships the other facts on record with regard to the reasons offered for condonation of delay. The said facts on record were that:
"after the judgment and decree of the lower Court the scope for filing the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed without disclosing why it has been filed."
In the said set of facts Their Lordships observed that:
"Law of limitation that may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the Courts have no power to extend the period of limitation on equal grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious."
10. On the other hand, the learned Government Pleader for arbitration while referring to the reasons filed before this Court relied on a judgment of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, . Their Lordships laid down principles on this subject. Some of the principles are thus:
"1. 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.
2. '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.
3. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot be claim to have vested right in injustice being done because of a non-deliberated delay.
4. It must be grasped that judiciary is respected not on account of its power to legalise justice on technical grounds but because it is capable of removing injustice and is expected to do so."
It was further observed that:
"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 evenhanded manner. There is no warrant for according a step-motherly 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 incharge 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 not 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 evidence 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 scuttle a decision on merits."
The Supreme Court relying on the decision of Katiji's case (supra) in G. Ramegowda v. Special Land Acquisition Officer, Bangalore, AIR 1998 SC 897, while dealing with the law of limitation observed that:
"....Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay....In litigations to which Government is a party there is same aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals... Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitute is, therefore, no impermissible."
The Supreme Court in State of Haryana v. Chandra Mani, , while relying on the judgments referred to above observed that:
".....In the event of decision to file 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."
11. A Division Bench of this Court in LAO v. Annam Reddi Musilithalli, 1995 (5) ALT 74, rendered its judgment relying on the judgments of the Supreme Court referred to above.
12. From the above judgments broadly the following principles would emerge:
1. Condonation of delay is a discretionary jurisdiction conferred upon the Courts.
2. The delay has to be satisfactorily and reasonably explained by the party making application seeking condonation of delay.
3. A liberal consideration has to be given to such applications seeking condonation of delay so as to advance substantial justice and also in the interest of justice where of course no gross negligence or deliberate inaction or lack of bona fides is imputable to the parties seeking condonation of delay. There may not be any presumption that the delay is occasioned deliberately or on account of culpable negligence.
4. In order to tide over the possibility of gross injustice strict compliance of technicalities need not necessarily be looked into.
5. When a State comes forward with an application to condone the delay it need not be given preference in exercising the jurisdiction while applying the law. of limitation. Equally State cannot be put on the same footing as an individual, since it is impersonal machinery working through officers.
6. If substantial injustice is likely to be caused to the public interest by virtue of inaction on the part of the Government may be because of the negligent attitude or because of the procedural formalities, the discretionary jurisdiction in such cases has to be exercised. In other words, the public interest whenever is found at serious peril has to be given the primacy.
13. Now, it is to be examined whether the principles laid down by the Apex Court in various decisions can be applied in the case on hand.
14. As already pointed out the suit was filed for the relief of fixing ryotwari assessment for the lands of an extent of Ac.67.32 cts., and also for mandatory injunction restraining the petitioners/ defendants from interfering with the A schedule lands on the ground that the plaintiffs were granted joint pattas by the then Special Deputy Tahsildar (Inam) in the year 1960. In ordinary course, if the written statement was filed a detailed trial would have been conducted with regard to the veracity of the pleadings and legality of the documents and the effect thereof relied on by the respondents/plaintiffs. Unfortunately the written statement was not filed in time resulting in passing of ex parte decree on 24-7-1990. There was long lapse of time for the petitioners/defendants to realise the fact that ex parte decree was passed. The reasons explained in the affidavit filed by the Mandal Revenue Officer, the second defendant in the suit, were of course not found satisfactory but in the evidence he stated that records could not be traced out because of bifurcation of districts. It is stated that Vizianagaram District was carved out in the year 1979 from the original two districts namely Srikakulam and Visakhapatnam and in that process the records were misplaced pertaining to the plaint schedule lands. Subsequently the records were traced and then only an attempt was made for filing written statement along with an application IA No.767 of 1994, seeking condonation of delay. According to him, he came to know about the passing of ex parte decree only when execution petition was filed. This reason in my view is not satisfactory, but an elaborate affidavit has been filed before this Court by the second petitioner namely the Mandal Revenue Officer, wherein he gave categorical account of the events and the actual position as per the revenue records. It is stated that large extent of plaint schedule lands are Tank Poramboke as per the records and the then Special Deputy Tahsildar (Inam) has no jurisdiction to grant pattas much less joint pattas to different individuals. It is also stated that there is a registered ayacut of about 12 acres and the same has been subsequently increased to 75 acres. Now, if the decree is executed, the ayacutdars, who are private ryots would be really affected but they are not made as parties to the suit. It is further stated that when Vizianagaram District was carved out from Srikakulam and Visakhapatnam Districts most of the records were transferred to Srikakulam District. Due to mixing up of the records written statement could not be filed in time. If pattas are granted in favour of the respondents/plaintiffs the rights of the ayacutdars would be affected and, in fact, the land identified as Tank Poramboke is prohibited for assignment by way of granting pattas.
15. Under the above circumstances, I cannot appreciate the conduct of the petitioners/defendants in filing an application, seeking condonation of delay in filing the petition to set aside the ex parte decree 24-7-1990, after about 4 years. Apparently this IA, which was filed in the year 1994, has been disposed of in the year 1999. Equally I cannot appreciate the reasons for the pendency of this application for more than 5 years before the Court below. As I have already observed, the reasons shown in the affidavit filed in support of the 1A before the lower Court are not at all satisfactorily explained, but in my considered view the facts placed before this Court through the affidavit filed along with the revision petition cannot also be brush aside. In my view the conduct of the petitioners/ defendants before the lower Court at the best can be identified as an act of gross negligence but not mala fide, but it is apparent from the categorical statements made in the affidavit before this Court that it is the ayacutdars i.e., all small farmers who are really affected when the decree is passed in favour of the respondents/plaintiffs. There is any amount of doubt with regard to the documents that were relied by the plaintiffs and the legality of the pattas said to have been granted in their favour as well. It can also be seen that after the part of the plaint schedule land was handed over to the Irrigation Department, the ayacut of the tank has been enlarged to 75 acres. Though numerically the extent of the land covered by the alleged tank is low the loss and prejudice that is likely to be caused to the small farmers covered by the said tank is not that low. It is the duty of the State represented by the petitioners/defendants not only to see that the lands belonging to the Government are safeguarded but also to subserve the interest of the small or marginal farmers who are likely to be affected. Nothing is lost to the Government if the suit is decreed ex parte but the State being the custodian of the public property has to necessarily take all steps to defend its interest thereby defending the interest of the public at large.
16. Therefore, the broad principle that the State cannot be given preferential treatment in the application of law of limitation need not be made applicable in the present set of facts. It would probably lead to a situation where the general public are affected because of the culpable negligence on the part of the petitioners/defendants. As pointed by the Apex Court the loss if any caused to the public, such an act of negligence has to be compensated by those persons who are responsible for such damages.
17. Of course, in such circumstances, I am of the view that the defence that is going to be taken by the petitioners/ defendants will have to be tested in a full trial by the Court below and eventually the defence of the State may be accepted, and thereby the interest and the property of the public would be safeguarded. It is too early to comment in any manner on the facts and circumstances narrated in the affidavit filed in support of the revision petition by the petitioners. I am of the firm view that justice rendered by the lower Court may be termed as 'short circuited' at the cost of the real beneficiaries who are small farmers/ ayacutdars. The State shall not act as a nominal contender and when it is found that the action of the authorities is inadequate or insufficient or negligent, this Court cannot act as a mute spectator. Therefore, in the light of the observations made by -the Apex Court on various cases, in view of the facts and circumstances of the case and also in view of the fact that serious public interest is involved, I am of the view that the Court below ought to have exercised its jurisdiction by allowing the IA No.767 of 1994, seeking condonation of delay in filing the petition for setting aside the ex parte decree dated 24-7-1990, instead of keeping the IA for about 5 years.
18. In view of the foregoing discussion, IA No.767 of 1994 is allowed and the delay of 1539 days is condoned, subject to the condition that the petitioners/ defendants shall pay a sum of Rs.10,000/-(Rupees ten thousand only) to the respondents/plaintiffs towards costs within a period of four weeks from today. The amount of costs Rs.10,000/- (Rupees ten thousand only) shall be deposited with the Court below in order to be paid to the plaintiffs/respondents.
19. With the above direction, the civil revision petition is allowed.