Gujarat High Court
Lalitkumar vs Daudbhai on 6 August, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/7980/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7980 of 2010
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LALITKUMAR
NATUBHAI PATEL - Petitioner(s)
Versus
DAUDBHAI
ALIARAKHA SHEIKH (DRIVER) & 1 - Respondent(s)
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Appearance
:
MS.J
K.MEHTA for
Petitioner(s) : 1,
DELETED for Respondent(s) : 1,
MRS
VASAVDATTA BHATT for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/08/2010
ORAL
ORDER
1. Heard learned advocate Ms.Jyoti K. Mehta for petitioner and learned advocate Ms.Vidhi Sodhan for learned advocate Mrs.Vasvadatta Bhatt on behalf of respondent No.2. Respondent No.1 is deleted.
2. Rule.
Learned advocate Ms.Vidhi Sodhan for learned advocate Mrs.Vasvadatta Bhatt wavies service of notice of Rule on behalf of respondent No.2.
3. In present petition, the petitioner has challenged order passed by MAC Tribunal, Anand in Misc. Delay Condonation Application No.25 of 2009 dated 9.12.2009 whereby delay condonation application filed by petitioner has been rejected in setting aside dismissal of claim petition.
4. Looking to facts of present case, on 30.5.1994 at about 1.30 p.m. Near village Adas, National Highway No.8 and also near Dayal Petrol Pump, the accident occurred with ST Bus bearing No.GJ-1-Z-3797. Due to the aforesaid accident, petitioner had received serious injuries and for that, claim petition was filed by petitioner claiming Rs.9 lacs with 18% interest against respondent on 14.11.1994. This application has been dismissed in default by claims Tribunal on 7.2.2007. The order passed by claims Tribunal dismissing claim petition in default which is at page-12, is quoted as under :
(1) That present applicant has filed this claim petition to get compensation of Rs.9,00,000/- in respect of accidental injuries sustained by him in a vehicular accident, from the present opponents under the provisions of Sec.166 of the MV Act,1988.
(2) That present application has been filed on 14/11/94 and till today i.e. after passage of 12 years, applicant has not produced any documentary evidence like FIR, injury certificate/disability certificate.
(3) That after emerging of Anand District, present applicant has been duly served with fresh notice on 17/8/06, and it reveals that present applicant has not mentioned sufficient address and his whereabouts are not traceable. That LA for applicant has been duly serve with fresh notice on12/12/06, and thereafter matter was adjourned 3/1/07 and 7/2//07, and inspite of giving sufficient opportunity, but LA for the applicant or applicant, did not appeared before the Tribunal, and also did not produced any documentary evidence like FIR, Panchnama, Disability certificate and Injury certificate. Thus, it seems that present applicant is not ready and willing to conduct his case, and hence, I pass the following order :
ORDER The claim petition is hereby dismissed for default. ...
5. The aforesaid order has been passed by claims Tribunal on the ground that from date of filing claim petition on 14.11.1994 after passage of 12 years, no documentary evidence has been produced on record by claimant and no sufficient address has been supplied by claimant of respondents and inspite of giving sufficient opportunity to claimant, did not appear before the Tribunal and therefore, matter has been dismissed for default. Thereafter, application for restoration has been filed by petitioner in the year of 2009 along with delay condonation application. The claims Tribunal has considered the delay condonation application after considering original record which has been called for by claims Tribunal and according to claims Tribunal, earlier order of dismissing the claim petition in default has been passed with a reasoned order and no satisfactory reason or explanation is given by petitioner as to why such delay has been occurred in filing restoration application. Ultimately, the claims Tribunal has come to conclusion that neither any satisfactory explanation is given nor any sufficient cause is pointed out by petitioner and therefore, delay condonation application was rejected.
6. Learned advocate Ms.Mehta submitted that petitioner being an illiterate and poor person, not engaged any advocate at the time of filing restoration application. The claims petition was dismissed on 7.2.2007 and in the year of 2009, restoration application was preferred by petitioner along with delay condonation application.
Therefore, she submitted that there was a delay of about 2 years and not more than that. Even that has not been properly considered by claims Tribunal. Relying upon the decision in the case of State of Karnataka v. Moideen Kunhi (dead) by LRs and Others, reported in AIR 2009 SC 2577, she submitted that the Apex Court has condoned the delay of 6500 days and entertained the proceedings subject to some payment of exemplary cost to the other side. She also relied upon relevant observations made in aforesaid decision that in such cases where delay is occurred, it required liberal approach from the Court. She also submitted that the Apex Court has also considered and condoned delay of 30 years in filing SLP in case of Nand Kishore v. State of Punjab reported in 1995 (6) SCC 614. Relevant observations of aforesaid decision are in Para.15, 16 and 19, which is quoted as under :
15. It is submitted that even with the introduction of safeguards against delay in the process, in an occasional case delay occurs which is inexplicable in normal circumstances. The question is whether such delay, should result in the negation of the state s claim and at the cost of the interest of the members of the public whose cause has not been carefully espoused. It is submitted by the appellant-State that in such cases, delay must be visited with consequences but the interest of the inhabitants of the State must be protected.
In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it was held as follows:
....It is axiomatic that decisions are taken by officers/ agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If The appeals brought by the State are lost for such default no Person is individually affected but what in the ultimate analysis suffers, is public interest. .....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 Further at para 15 this court held that:
...
The above position was highlighted in State of Haryana v. Chandra Mani and Ors. 1996 (3) SCC 132; Special Tehsildar, Land Acquisition, Kerala v. K V.Ayisumma (1996 (10) SCC
634) and State of Nagaland v. Lipok AO and Ors. (2005 (3) SCC 752).
It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and, it would result in public mischief by skilful management of delay in the process of filing an appeal.
16. This Court has in appropriate cases even condoned delays of over 30 years in filing of SLPs. In Nand Kishore v. State of Punjab 1995 (6) SCC 614 this court held:
.........13.
The step of the three-member Bench so taken reveal its mind as reflected in the above proceedings. Their Lordships wanted to do substantial justice. It was thought better to advise the petitioner to file special leave petition. As we view this order, having invited the petitioner to file the special leave petition, it is no longer advisable or appropriate for us to retrace back the step put forward by the three- member Bench. It is significant to recall that the writ application was dismissed on 5-2-1962 and the moment Moti Ram Deka case appeared on the scene, the appellant or 24-2-1964, within limitation, brought forward his suit which got strengthened by Gurdev Singh case appearing within a couple of months of its filing. The appellant-special leave petitioner was thus bona fide pursuing an appropriate remedy for all these years. In these circumstances, we think that an appropriate case for condonation of delay of the intervening period has been made out. We, therefore, allow CC 11644 of 1991 and condone the long durated delay in these exceptional circumstances. On doing so, we grant leave to appeal. The appeal thus arising and the Civil Appeal No. 632 of 1975 may now be disposed of together....
19. The expression `sufficient cause as appearing in Section 5 of the Indian Limitation Act, 1963 (in short the `Limitation Act ) must receive a liberal construction so as to advance substantial justice as was noted by this Court in G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897). Para 8 of the judgment reads as follows:
8.
.......The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. Therefore, in assessing what, in a particular case, constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental 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 latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints . Due recognition of these limitations on governmental functioning of course, within reasonable limits is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law officers. Lindley, M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed, though in a different context:
Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them.
7. In view of above observations made by Apex Court and considering the fact that claimant, who has filed application for compensation, no doubt, remained absent on the date on which claims Tribunal has proceeded with it. However, his advocate was also not remained present on the date on which the matter was taken up. Therefore, normally in such cases, the Court should not take a strict view but, it requires some liberal approach from the Court while considering delay condonation application. The reason which has been given by claims Tribunal in rejecting delay condonation application, the claims Tribunal has not properly considered the reasons which has been given by petitioner in his application. The application which has been made by claimant before claims Tribunal that matter was transferred from Nadiad Court to Anand Court, that fact was not known to the claimant and advocate engaged by him had also not informed to claimant about transferring of the proceedings from Nadiad Court to Anand Court. Therefore, they were not aware about the proceedings which has been transferred and advocate has not given any intimation to petitioner. Therefore, they remained absent and due to that, matter has been dismissed in default. Therefore, petitioner had remained absent as no intimation was given by advocate. Therefore, it was at the most a lapse on part of advocate and for that, at least party should not be made to suffer. This reason has not been properly considered by claims Tribunal.
8. In case when there is a lapse on part of advocate in not intimating to the party litigant, at least party should not be made to suffer, as per recent decision of Apex Court's decision in case of Ram Kumar Gupta & Ors. v. Har Prasad & Anr., reported in AIR 2010 SC 1159 wherein case of Rafiq & Anr. v. Munshilal & Anr., reported in 1981 SC 1400 has been considered by Apex Court. Relevant observations of aforesaid decision are in Para.4 and 5 which is quoted as under :
4.
We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Sh.Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non appearance of the learned counsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal & Anr. [1981 (2) SCC 788], this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application.
5. In view of our discussions made herein above, we are, therefore, of the view that both the orders, namely, the order of rejection of the application for restoration as well as the application for dismissal of the writ application for non prosecution are liable to be set aside. Accordingly, both the orders are set aside and the writ petition is restored to its original file. However, considering the facts and circumstances and length of the matter being kept pending in court, we restore this writ application subject to the condition that the appellants shall deposit and pay a sum of Rs.10,000/- as costs to the respondent within two months from the date of filing of a copy of this order in the High Court.
9. Therefore, in light of entire facts and circumstances of the case and apparently, there was no negligence or lapse on part of petitioner but, due to the intimation not given by advocate, the petitioner had not remained present, therefore, order passed by claims Tribunal, Anand dated 9.12.2009 rejecting delay condonation application filed by petitioner is hereby quashed and set aside. The delay is condoned. Accordingly, delay condonation application is allowed.
10. Let claims Tribunal may consider sympathetically restoration application preferred by petitioner and decide the same as early as possible within a period of two months after giving reasonable opportunity of hearing to respective parties.
11. The petition is accordingly allowed. Rule is made absolute. No costs.
(H.K.RATHOD,J.) (vipul) Top