Gujarat High Court
Madan Hundraj Thakur & 7 vs Vishindas Jethanand Materja & on 17 September, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/CA/2798/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2798 of 2014
In FIRST APPEAL (STAMP NUMBER) NO. 1083 of 2014
With
CIVIL APPLICATION NO. 2799 of 2014
In
FIRST APPEAL (STAMP NUMBER) NO. 1082 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH Sd/-
=================================================
1 Whether Reporters of Local Papers may be allowed to see the No judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the No interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ================================================= MADAN HUNDRAJ THAKUR & 7....Applicant(s) Versus VISHINDAS JETHANAND MATERJA & 1....Respondent(s) ================================================= Appearance:
MR CHINMAY M GANDHI, ADVOCATE for the Applicant(s) No. 1 - 8 MR MB GANDHI, ADVOCATE for the Applicant(s) No. 1 - 8 MR JAYESH A KOTECHA, ADVOCATE for the Respondent(s) No. 1 - 2 ================================================= CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 17/09/2014 CAV COMMON JUDGMENT
1. Rule. Learned advocate Mr.Jayesh A.Kotecha waives service of Rule for the opponents.
2. Heard learned advocate Mr.M.B.Gandhi for the applicants and learned advocate Mr.Jayesh A.Kotecha for the opponents.Page 1 of 23 C/CA/2798/2014 CAV JUDGMENT
3. The applicants have prayed to condone the delay in challenging the judgment and order dated 07.05.2009 in Civil Misc. Application No.298 of 2008 and Civil Misc. Application No.299 of 2008 by City Civil Court at Ahmedabad. By such impugned judgment, the application of the present respondents, to restrain present applicants from transferring such properties and to dispose of the Books of Accounts till arbitration proceeding is completed, was allowed.
Therefore, there is a prayer to condone the delay of 1733 days in challenging such an order.
4. In general, though law of limitation is liberal for, couple of decades, now, in some decisions the Hon'ble Supreme Court has taken a stand that delay should not be condoned in routine manner and however it is observed by the Hon'ble Supreme Court that law of limitation may not be harshly applied but, it has to be applied with all its rigour when the statue so prescribes and the Courts shall have no power to extend the period of limitation on equitable grounds. It is also clear and certain that in case sufficient cause is shown by the applicants for not challenging the impugned order in prescribed period of limitation, then Courts have ample powers to condone the delay. It is also clear that the term "sufficient cause" is not defined in any statue and there are catena of decisions by the Hon'ble Supreme Court that "sufficient cause" is to be considered with reference to the facts, circumstances and details of each case, on its own merits and Page 2 of 23 C/CA/2798/2014 CAV JUDGMENT there cannot be a fixed rule that delay beyond particular days can never be condoned.
5. The respondents herein are objecting the condonation of delay. In addition to above stand, it is submitted that the law of limitation is not applicable to such proceedings and therefore, application under Section 5 of Limitation Act for condonation of delay cannot be entertained. Needless to say that if law of limitation does not apply at all, then there is no question of considering the delay, as counted by the applicants while accepting the main appeals by the Registry. However, when respondents have also submitted that such an appeal is to be treated under Order 43 of the Code of Civil Procedure and thereby, the period of limitation is only 90 days, then their first submission that law of limitation does not apply to such proceedings is not tenable. Then, the question would be that what is the prescribed period of limitation for such an appeal and if there is no prescribed period of limitation, then what would be the reasonable time for challenging such an order in an appeal like the present one.
6. In view of the above basic details, we need to examine the pleadings and law applicable to such matters.
7. The applicants have submitted on oath that though they have applied for certified copy of the impugned order, the same was not delivered to them by the Clerk of the advocate and when they had Page 3 of 23 C/CA/2798/2014 CAV JUDGMENT repeatedely demanded the copies, the Clerk was passing the time by one or another reason. Therefore, there was delay in delivering certified copies by the concerned Clerk of the advocate. It is further submitted that, in the meanwhile, several situation had changed and there were an order regarding appointment of an Arbitrator but there was no award in time till the term of arbitration by the High Court had expired. Thereupon, second application was made and the matter has been dragged up to the Hon'ble Supreme Court wherein, long time was consumed. It is further submitted that while persuading the challenge against order of arbitration and extension of time, they could not get the certified copy of the impugned order and therefore, could not file the appeal in time because of the pending proceedings both before the Hon'ble Supreme Court and before the Arbitrator. It is further contended that ultimately Clerk of the advocate had confirmed that certified copy had been lost by him and therefore, the applicants had to apply afresh for getting certified copy and on getting the same, appeal is filed. It is also contended that though impugned order was to be challenged in appeal because of the pending litigation before the Hon'ble Supreme Court challenging the appointment of Arbitrator itself, it skipped the attention of the applicants that the impugned order is required to be challenged separately and therefore, there was a delay of 1733 days. But, otherwise there was no negligence on the part of the applicants and that in view of all such grounds, delay occurred in preferring the present appeals deserves to be condoned in the interest of justice. Page 4 of 23 C/CA/2798/2014 CAV JUDGMENT
8. Opponent No.1 has filed an affidavit-in-reply on behalf of all the opponents contending that applicants have deliberately stated wrong facts in the applications and want the Court to consider several factual aspects by submitting that it was deliberately suppressed by the applicants with a view to misguide the Court and therefore, the same is narrated with a view to assist this Court as it is his pious duty.
9. Needless to say that so far as application for condonation of delay is concerned, though nature of dispute and basic facts may be looked into, minor and detailed facts of merits between the parties may not be much relevant aspect to consider whether there is prima facie case in favour of the petitioners or not. Therefore, I do not think it necessary to reproduce all these minor details regarding dispute between the parties and how it has been dragged till date. Opponents have also annexed order dated 06.05.2014 in Special Civil Application No.4333 of 2014 between the parties with reference to the dispute between them, copy of notice issued by Arbitrator and reply as well as application by the petitioners before the Arbitrator, who is retired Judge of this High Court [Hon'ble Mr. Justice Ramesh A.Mehta (Retd.)]. It is also submitted by the opponents that even after such notice by the Arbitrator, the plaintiff has failed to comply with the order of the Arbitrator. Such documents and reference is regarding demand of certain Books of Accounts by the opponents from the present Page 5 of 23 C/CA/2798/2014 CAV JUDGMENT petitioners for which Arbitrator has passed certain orders and issued notice. However, if we peruse the judgment dated 06.05.2014 passed by the coordinate Bench of this Court in Special Civil Application No.4333 of 2014 between the same parties and arising out of the same arbitration proceedings, it becomes clear that the High Court has observed that if the impugned order is not complied with, the consequences arising in law shall inure both the sides and thereby, confirmed that arbitration proceedings shall proceed in accordance with law and amount of costs imposed by the Arbitrator against the present petitioners were ordered to be invested in Fixed Deposit by the Registry in the nationalized Bank and to get it renewed with accumulated interest thereon and thereby, at least, this High Court has stayed the order regarding payment of arbitrators fees by present petitioners as costs.
10. So far as submission regarding allegations against the Arbitrator is concerned, only because of language in some pleadings by the applicants, they cannot be denied to have their right for condonation of delay in their favour, if, otherwise, the facts and circumstances are in their favour. Needless to say that if at all there is defamatory statement against the learned Arbitrator, appropriate proceeding can be initiated by the aggrieved parties.
11. In rejoinder, the applicants have annexed an affidavit of Mr.Jitendra R.Darbar, who is the Clerk of advocate Mr.Rajan Modi, who Page 6 of 23 C/CA/2798/2014 CAV JUDGMENT had undertaken the responsibility of getting certified copies. It is averred that by mistake the certified copies were either tied with some other file or were given to some other party and he could not recollect and thereby, it is contended that it is a human error and therefore, it is to be considered as an explanation of delay for its condonation. It is further reiterated that they are unhappy with the arbitration proceedings and, therefore, they have challenged the order of the Arbitrator by filing Special Civil Application No.4333 of 2014, which is discussed hereinabove, wherein a portion of the impugned order was stayed by this Hon'ble Court and that said Special Civil Application is yet pending for hearing. So far as dispute regarding production of documents being Account Books are concerned, it is contended that Books of Accounts which are available with them, have been given to the respondents and that rest of the Books of Accounts are not in their custody and, therefore, it was disclosed to the learned Arbitrator that they are not in a position to produce such document even if a mandatory order was passed for production of such documents and therefore, ultimately, the petitioners have no option but to approach this Court. Considering the fact that all details are common in both the Civil Applications, one set of pleading filed in this application is requested to be considered in Civil Application No.2799 of 2014 also.
12. If we peruse the affidavit of Mr.Jitendra R.Darbar produced in Civil Application No.2799 of 2014 and if the contents therein are Page 7 of 23 C/CA/2798/2014 CAV JUDGMENT taken in verbatim, it become clear that it is a human error in not supplying the certified copies in time to the applicants since he could not find out the same in time. Though an attempt was made to show that he was not the Clerk of the advocate for the applicants before the trial Court, it is also clear and certain that opponents have not controverted or tried to rebut the statement on oath either by cross examination or by filing of affidavit. In any case, there is no reason to deny the condonation of the delay.
13. The opponents have contended that law of limitation is not applicable to such a proceeding, relying upon provisions of Section 37 of the Arbitration and Conciliation Act, which provides for appealable orders. Therein Clause A of Sub Section 1 confirms that order either granting or refusing to grant any measure under Section 9 of the Act is appealable. It is not disputed that main appeal is against such an order under Section 9 of the Act and therefore, it is appealable. However, there is no clarity or prescribed period of limitation for filing such appeal and thereby there is no clause disclosing that if appeal is not filed in prescribed period, then how it should be dealt with. Therefore, on the one hand, respondents have submitted that application under Section 5 of Limitation Act is not maintainable to condone the delay and on the other hand, it is submitted that there are judgments confirming that such an appeal is to be treated as an appeal under Order 43 of C.P.C. and therefore, limitation is only 90 days. If we consider that there is no specific provision prescribing Page 8 of 23 C/CA/2798/2014 CAV JUDGMENT limitation for filing such an appeal, then though Article 137 of the schedule under the Limitation Act speaks for an application, it can be considered for all type of litigation, when no period of limitation is provided elsewhere, the period of limitation is to be considered as three years. Limitation of three years and otherwise, not foreign to the provision of limitation inasmuch as for so many suits and even for some execution, the prescribed period of limitation is three years, though for appeals, it is almost 90 days, in most of the cases. However, when there is no amendment in the Limitation Act, which is enacted in the year 1963 and when there is no provision regarding limitation in the newly enacted Arbitration and Conciliation Act, 1996, it cannot be said that general principle of limitation cannot be considered in such cases. Even if we consider the limitation for such an appeal to be 90 days, the factual details that after the appointment of the Arbitrator when arbitration proceeding are not over even after more than three years, it cannot be said that aggrieved party cannot approach the competent Court for appropriate relief with an application to condone the delay and when there is no prescribed period of limitation fixed for such appeals, it would be for the concerned Court to decide the reasonable time of limitation and whether to condone it or not, considering the facts and circumstances and evidence before it.
14. In view of the above facts and circumstances, after perusal of entire record and considering submissions of both the sides, I am of Page 9 of 23 C/CA/2798/2014 CAV JUDGMENT the opinion that even if there is a delay of 1733 days, when arbitration proceeding is not completed for couple of years and when the impugned order is against the rights and interest of the applicants, they cannot be denied to agitate and challenge such an order, even at such belated stage. It cannot be ignored that at present we are not deciding the validity of impugned order but if we accept the submissions of the opponents, then it would amount to a stigma on the impugned order once it is not challenged in 90 days, as suggested. In that case nobody will complete the arbitration proceedings, once interim relief is in their favour.
15. Learned advocate for the opponents has also relied upon the order dated 22.08.2014 by the learned Arbitrator under Section 27(5) of the Arbitration Act and decision between (2012)5 SCC 157
- Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai - wherein the Apex Court has dealt with Section 5 of the Limitation Act and more particularly expression 'sufficient cause'. It is clarified and discussed with reference to object of Limitation Act and extent of leniency to be shown in public interest in condonation of delay by State machinery. Though High Court's order to condone the delay was set-aside by the Apex Court, it was held that expression 'sufficient cause' should be construed liberally on facts without any hard and fast rules. It is further stated that substantive right of parties should not be ignored because of delay, but a distinction must be made between the delay of few days and inordinate delay causing Page 10 of 23 C/CA/2798/2014 CAV JUDGMENT prejudice to the other side and that no premium can be given to total lethargy or utter negligence. It is further stated that condonation of delay cannot be held as a matter of course by accepting the plea that dismissal of the matter on the ground of limitation will cause injury to public interest. In this reported case, there was delay of seven years and, therefore, the Apex Court has observed as such and refused to condone the delay, more particularly when explanation for such delay was prima facie found as concocted and causing prejudice to private appellant when the issue was pertaining to demolition. It is further observed that explanation regarding advocate's transfer has no bearing on the issue and that explanation offered was silent about the events and persons involved and credible causes for such delay. Therefore also, though in this reported judgment, delay has not been condoned, it cannot be the rule of law that delay cannot be condoned even if sufficient cause is shown, because in the reported case, condonation of delay was practically refused because of the particular facts on record i.e. delay of seven years with absence of proper explanation and concocted explanation for condonation of delay. Therefore, unless there is such reason in the case on hand, such decision cannot be applied to every case blindly without verifying that whether cause for delay is sufficient or not.
16. It would be appropriate to recollect here the judgment between the State of Goa v. M/s.Western Builders reported in AIR 2006 SC 2525(1), which confirms that provision of Section 14 of the Page 11 of 23 C/CA/2798/2014 CAV JUDGMENT Limitation Act is applicable to proceeding under Section 34(3) of the Arbitration Act, therefore, it cannot be said that law of limitation is not applicable at all to the proceedings under the Arbitration Act. In view of above facts and circumstances, when this Court is of the opinion that there is sufficient cause for the applicants for not filing in appeals in prescribed period of limitation, there is not reason to refuse to entertain such applications. Therefore, when there is sufficient cause, the delay is required to be condoned as prayed for.
17. There are catena of judgments, more particularly when 'sufficient cause' and reasonable ground' are not defined under the law, that in general, the dispute shall be resolved on its own merits rather than technicalities and that, therefore, 'sufficient cause' and 'reasonable ground' for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straitjacket formula that what is 'sufficient cause' and what is 'reasonable ground' for condonation of delay, it goes without saying that 'sufficient cause' and 'reasonable ground' may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay.
18. Before determining the issue relating to sufficient cause finally, Page 12 of 23 C/CA/2798/2014 CAV JUDGMENT it is necessary to deal with several decisions:
18.1 (2010)2 SCC 114 - Dalipsingh Vs.State of UP & Ors. - wherein the Hon'ble Apex Court has dealt with practice and procedure with reference to abuse of process stating that new creed of dishonest litigants noticed, which is to be deprecated strongly with denial of any relief to such persons. The Apex Court has held that costs should be imposed if party approaching the Court is guilty of suppressing facts and misleading the Court. It is further held that such litigant is not entitled to be heard on merits and cannot invoke the extraordinary/discretionary jurisdiction under Constitution.
Such principle can be invoked based upon the facts and circumstances of particular case and, therefore, unless there is a clear determination to that extent, such judgment does not help the opponent in present application for consideration of cause of delay.
18.2 (2012)8 SCC 524 - Cicily Kallarackal Vs. Vehicle Factory - wherein the Apex Court has held that if there is no sufficient cause, inordinate delay would amount to substituting the period of limitation prescribed by statute. Therefore, outcome of such judgment is simple that for condonation of delay there must be sufficient cause, thus it cannot be said that delay cannot be condoned even if there is sufficient cause.
18.3 (2012)3 SCC 563 - Post Master General & Ors.
Vs.Living Media India Ltd. & Ors. - wherein also the Apex Court has dealt with 'sufficient cause' with reference to Section 5 of the Limitation Act, 1963. The Apex Court has held that if there is non-explanation of sufficient cause, and if there is Page 13 of 23 C/CA/2798/2014 CAV JUDGMENT absence of diligence by Department in prosecuting matter, inspite of another opportunity of filing 'better affidavit' being granted, it was held that condonation of delay is exception and should not be used as an anticipated benefit for government departments. Therefore, again this decision is based upon the particular facts and circumstances on record before the Apex Court wherein the Apex Court has found that there is negligence on the part of the Government and there is non- explanation of sufficient cause. Therefore, only because of such judgment, it cannot be said that delay cannot be condoned in all cases even if sufficient cause is proved.
18.4 (2010)8 SCC 685 - Balwant Singh (Dead) Vs. Jagdish Singh and Others - wherein the Apex Court has again dealt with express 'sufficient cause'. But, it is categorically stated that 'sufficient cause' implies presence of legal and adequate reasons and there cannot be straitjacket formula uniformly applicable to all cases without reference to the particular facts and circumstances of a given case. Therefore, it is to be decided by the Court whether or not a cause is sufficient and whether it could have been avoided by the party by exercise of due care and attention. Therefore, only because of denial of condonation of delay in few cases would not amount to a straitjacket principle of law that delay cannot be condoned irrespective of sufficient case shown. 18.5 (2010)5 SCC 459 - Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr. - wherein though the Supreme Court has directed probe to be conducted against defaulting officials of respondent Corporation for fixing accountability while denying to condone the delay, the fact remains that in the given case Page 14 of 23 C/CA/2798/2014 CAV JUDGMENT before the Apex Court, there was false statement made to explain the delay and when litigant did not approached the Court with clean hands, the Apex Court had no option, but to take serious view of the matter. However, while defining the term 'sufficient cause', the Apex Court has categorically observed and held that Courts bestowed with power to condone delay, if sufficient cause is shown and that term 'sufficient cause' elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay and that liberal approach in condoning the delay of short duration with stricter approach in case of inordinate delay is required. It is further stated that certain amount of latitude not impermissible with regard to the State because State represents collective cause of the community and decisions are taken by the Officers/agencies i.e. more than one person. Therefore, even in the case cited by the opponent, the Apex Court has categorically stated in paragraph 15 that no hard and fast rule can be laid down in dealing with the application for condonation of delay.
18.6 (2008)17 SCC 448 - Pundlik Jalam Patil (Dead) Vs.Executive Engineer, Jalgaon Medium Project & Anr. - the Apex Court has refused to condone the delay mainly because of the reason that the Court was of the opinion that there was fraud on Court by public authority when false plea was taken with incorrect statement made in application seeking condonation of delay itself and, therefore, it was held that it is sufficient to reject such application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay or not. Therefore, unless there is a proof or pleading regarding fraud committed with the Page 15 of 23 C/CA/2798/2014 CAV JUDGMENT Court proceeding only because of such judgment, it cannot be held that delay cannot be condoned in any case.
18.7 (1997)7 SCC 556 - P.K. Ramachandran Vs.State of Kerala & Anr. - wherein the Apex Court has refused to condone the delay because there was no explanation much less reasonable or satisfactory explanation offered by the State for condonation of delay in application for the purpose. Though it was seriously opposed, the same was allowed by the High Court without taking into consideration of all the aspects touching to such subject. However, only for such citation, it cannot be held that delay cannot be condoned even if there is sufficient cause.
18.8 2012(7) SCALE 230 - B.Madhuri Goud Vs.B.Damodar Reddy - the Apex Court has refused to condone the delay of almost four years to set-aside the ex- parte decree since the ground pleaded for condoning delay was that the documents were misplaced by the office of the advocate and inadvertently tagged with the record of another appeal, but the affidavit of concerned advocate was not filed on record. Therefore, in such case, when cause was not supported by affidavit, Apex Court has decided not to condone the delay. Hence, in absence of such proof, it cannot be said that delay cannot be condoned even if sufficient cause is pleaded and proved on record.
19. The sum and substance of all above decisions cited by the opponent makes it clear that there cannot be a straitjacket formula or rule either for condonation of delay or to reject the condonation and that every case is to be decided considering the facts and Page 16 of 23 C/CA/2798/2014 CAV JUDGMENT circumstances of that case only. The only requirement for condonation of delay is that whether there is 'sufficient cause' for the litigant not to initiate the litigation in prescribed time of limitation. In all the cases cited above, there is either inordinate delay, which was never explained or there was misrepresentation or fraud and, therefore, the Apex Court has held that in such cases, delay cannot be condoned. However, it cannot be ignored that in almost all such judgments, the Apex Court has categorically observed and held that if sufficient cause is shown, delay can be condoned and that term 'sufficient cause' elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay.
20. As against that, if we look into the judgments cited by the applicant, it becomes clear that generally Courts should be reluctant to shut out a consideration of the case on merits on the grounds of limitation or any other similar technicality (AIR 2012 SC 640 - Abdul Gafoor Vs. State of Bihar); if there is delay in filing petition, due to opinion of the advocate on record and the Solicitor General etc., such delay deserves to be condoned (AIR 2011 SC 428 - Delhi Development Authority Vs.Bhola Nath Sharma); there is a strong arguable case on behalf of the appellant and, therefore, the Court should decide the matter on merit by giving the expression 'sufficient cause' a pragmatic justice-oriented approach (AIR 2011 SC 977 - Union of India Vs.Giani); the meaning of the word Page 17 of 23 C/CA/2798/2014 CAV JUDGMENT 'sufficient' is 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended and, therefore, word 'sufficient' embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application (AIR 2011 SC 1150
- Parimal Vs.Veena); if case file has to be routed from various departments before decision to file appeal, it is sufficient cause for condonation of delay (AIR 2010 SC 1445 - State of J & K Vs.Mohmad Maqbool Sofi); while deciding application for condonation of delay, Court cannot go into the merits of the case, if averments made in the application is sufficient to condone the delay, there is no hesitation to condone such delay (AIR 2009 SC 1927 - State of Jharkhand Vs.Ashok Kumar Chokhani); the expression 'sufficient cause' must receive liberal construction to advance substantial justice even condoning delay of more than 6500 when question of law involved (AIR 2009 SC 2577 - State of Karnataka Vs.Y.Moideen Kunhi); and what counts is not length of delay, but sufficiency of cause and that what constitutes 'sufficient cause' cannot be laid down by hard and fast rules [AIR 2009 SC (Supp.) 695 - State (NCT of Delhi) Vs.Ahmed Jaan]; delay of more than six years can also be condoned to avoid miscarriage of justice (AIR 1984 SC 1744 - O.P. Kathpalia Vs. Lakhmir Singh (Dead) - by 3 Judges bench of Apex Court).
Page 18 of 23 C/CA/2798/2014 CAV JUDGMENT
21. Moreover, atleast in AIR 2008 SC 1688 - Sinik Security Vs.Sheel Bai, AIR 2009 SC 2170 - D.D. Vaishnav Vs.State of M.P. and AIR 2009 SC (Supp.) 195 - Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, the Apex Court has condoned inordinate delay (769 days, 589 days and 178 days respectively) even by imposing some costs upon the applicant.
22. In AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors., the Apex Court has held as under -
"The legislature has conferred the power to condone delay by enacting Section 51 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 realized that:-
[1 "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."]
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 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.Page 19 of 23 C/CA/2798/2014 CAV JUDGMENT
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 against each other, cause of substantial justice deserves to be preferre for the other side cannot claim to have vested right in injustice being done because of a non-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 be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. 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 even handed manner. There is no warrant for according a stepmotherly 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 in charge 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-non-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 evidenced 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 scuttles a decision on merits"
23. If we scrutinize all above referred citations, it becomes clear that in the citations referred by the applicant and discussed in above paragraphs, the delay was not condoned mainly for the reason that either there is forged statement by the applicant or the cause for delay was shown as loss of paper by the advocate or the main Page 20 of 23 C/CA/2798/2014 CAV JUDGMENT dispute is falling under Special Legislature like Rent Control or Arbitration or Consumer Dispute. Though in some cases, dispute falls within General Law, the second aspect for non-condoning the delay is actual delay in number of days, which is more than 1000 days in 5 cases, out of total 8 cases referred by the opponent and discussed in above paragraphs. Unless there is a similar situation i.e. unless the case in hand falls within a special enactment or there is inordinate delay beyond couple of years, none of such referred and cited judgment confirms that delay cannot be condoned even if sufficient cause is shown, more particularly because of the reason that all such judgments are by the Division Bench only and in none of such judgments, any of the citations, which are relied upon and cited by the applicant and prior to the above referred judgments, were ever overruled or distinguished or even referred and not followed in any of the case, which is referred by the opponent. As against that, if we scrutinize the judgments cited by the applicant and referred in paragraphs 20 to 22, it becomes clear that atleast those judgments are referred amongst different judgments within them so as to decide that the delay can be condoned if sufficient cause is shown. Whereas atleast decision in O.P.Kathpalia Vs.Lakhmir Singh (Dead) & Ors. (supra) is by the three Judges bench of the Apex Court wherein delay of more than 6 years was condoned observing that otherwise it would result into miscarriage of justice. Therefore, when there is a judgment by the bench of three Judges of the Apex Court that to avoid miscarriage of justice, delay of even 6 years can be condoned and Page 21 of 23 C/CA/2798/2014 CAV JUDGMENT when the judgments referred and cited in paragraphs 20 to 22 are yet not overruled or distinguished in any of the later judgment by the Bench of three Judges', only because the Apex Court has not condoned the delay in some of the cited cases, it cannot be said that delay cannot be condoned in all cases after such judgments even if there is sufficient cause to condone the delay. Thus, in general, if there is sufficient reason to condoned the delay, irrespective of the cited cases, delay can be condoned.
24. Thus, in my view, the statement in the applications for condonation of delay does constitute sufficient cause to condone the delay.
25. In view of such facts and circumstances, when there is nothing on record to show that there is no sufficient cause for filing such appeals in prescribed period of limitation, there is no reason to deny the condonation of delay of 1733 days, as prayed for.
26. For the foregoing reasons, both applications deserve to be allowed, as prayed for and thereby, the delay of 1733 days in filing Civil Application No.2798 of 2014, whereas delay of 1733 days in filing Civil Application No.2799 of 2014 are condoned, as prayed for.
27. Rule is made absolute.
Sd/-
(S.G.SHAH, J.) Page 22 of 23 C/CA/2798/2014 CAV JUDGMENT dharmendra Page 23 of 23