Orissa High Court
Vice Chancellor Utkal University And ... vs Chakradhar Barik on 18 October, 2017
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
RVWPET NO. 338 OF 2016
with
MISC CASE NO. 353 OF 2016
In the matter of an application under Order XLVII, Rule 1 of the
Code of Civil Procedure for review of order dated 09.11.2015
passed in W.P.(C) No.7055 of 2010 and in the matter of an
application under Section 5 of the Limitation Act.
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Vice Chancellor, Utkal University
AFR and others ......... Petitioners
Versus
Chakradhar Barik ......... Opp.Party
For petitioners : M/s. Rakhi Sikdar and A. Sikdar,
Advocates
For opposite party : None
PRESENT:
THE HON'BLE DR. JUSTICE B.R.SARANGI
DECIDED ON :: 18.10.2017
DR. B.R. SARANGI, J. The above noted misc. case has been filed
for condonation of delay of 620 days, which after excluding the
limitation period of 30 days comes to 590 days, in preferring the
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application for review, by which the order dated 09.11.2015
passed by this Court in W.P.(C) No. 7055 of 2010 has been sought
to be reviewed.
2. In the application for condonation of delay, the
petitioners have pleaded as follows:
"3. That it is further humbly submitted by the
petitioners No.1 and 2 that due to re-construction and
renovation work which was undertaken by the
University authority right from 2012 in the
Administrative Block of the University, no official
sections in the said building could work/function
properly for the last 3 to 4 years. Since, the legal-cell,
establishment section, Diary and Despatch Cells
situated in the same building and the debris and the
building materials were spread across the adjacent
walls and tables of the sections nothing could function
normally in the same building. As a result of which a
lost of disturbances took place and the employees were
equally disturbed and perturbed in their day-to-day
work. In the meanwhile notices were sent to the
sections which remained unattended during this period,
as a result, no effective steps could be taken in the case
(W.P.(C) No. 7055/2010).
4. That the petitioner in W.P.(C) No. 7055/2010 had
filed a contempt petition bearing CONTC No. 443/2016
against these petitioners (Petitioner Nos. 1 & 2) as
Contemnors No. 1 and 2 and after receiving the show-
cause receipt, these petitioners became very much alert
to give respect/regards to the order of this Hon'ble High
Court, for which show-cause affidavit has already been
filed.
5. That it is further humble submitted that the
W.P.(C) No. 7055 of 2010 was heard exparte directing
the Petitioners No.1 and 2 to regularize the petitioner 1
and 2 with all the arrear dues which was against the
provision of the University Act. But the University
authorities could not be represented through its lawyer
after repeated calls, for which the interest of the
University could not be protected at the time of hearing
of the case (W.P.(C) No. 7055/2010).
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6. That in view of the facts and circumstances
stated above, the delay (369 days) in filing this Review
petition is neither intentional nor deliberate on the part
of the petitioners No.1 and 2. Moreover, the situation
was beyond the control of the said petitioners during
this period for which no effective steps could be taken
by these petitioners to comply the said order dated
9.11.2015passed by the Hon'ble High Court in W.P.(C) No. 7055/10. Hence this petition for condoning the delay of 367 days in filing this Review Petition is being filed today i.e. on 22.12.2016.
7. That the petitioners (Petitioners No. 1 & 2) further humbly submitted that the delay of 369 days in filing the Review Petition may be condoned, otherwise, the petitioners No. 1 and 2 would sustain irreparable loss and injury which cannot be compensated by any means, as the petitioners NO. 1 and 2 are the Vice- Chancellor and the Registrar of Utkal University, Vanivihar, respectively and it would cost a lot on the state exchequer since Utkal University with its staff thrives on the Block Grant of the State.
8. That, it is necessary in the interest of justice that the Hon'ble Court may be graciously pleased to condone the delay of 369 days in filing this Review Petition and the petitioners No. 1 and 2 be heard afresh."
As it reveals from the above pleadings, due to reconstruction-cum- renovation work there were dislocations in the office of the University for 3 to 4 years since 2012. On receipt of the notice in CONTC No. 443 of 2016, the review petitioners could able to know that W.P. (C) No.7055 of 2010 has been disposed of. Consequentially, delay of 369 days has been caused in filing review application and such delay is neither deliberate nor intentional.
3. The office has pointed out that the date of judgment/order was 09.11.2015 and the date of valid presentation of the review 4 application was 21.07.2017, on which date the certified copy of the judgment/order was filed. So, total period occupied being 620 days, excluding the limitation period of 30 days, in effect there was delay of 590 days in preferring the application for review. A bare perusal of the pleadings available on record would show that each day's delay has not been explained. Merely because there was dislocation in the office of the review petitioners, that by itself cannot absolve them of their liability to prefer the review application within the prescribed period of limitation. More so, this Court issued notice on 24.01.2012 in W.P.(C) No. 7055 of 2010 by registered post with A.D. to opposite parties no. 1 and 2 (review petitioners no.1 and 2) indicating that the matter would be disposed of at the stage of admission. Even though notice was sent to them by registered post with A.D., no acknowledgement was received, as a result of which the Registry issued reminder to the Senior Post Master, Chandinichowk Head Post Office, Cuttack with regard to sufficiency of notice on opposite parties no. 1 and 2. Since no report was received from the Senior Post Master, this Court on 09.07.2015 directed the writ petitioner to take fresh steps for issuance of notice to opposite parties no. 1 and 2 (review petitioners no. 1 and 2) by special messenger, cost of which should be assessed and deposit be made by 13.07.2015, fixing a short returnable date. Accordingly, notice was sent on admission matter to opposite parties no. 1 and 2 (review petitioners no. 1 and 2) by special messenger fixing 27.07.2015 for appearance and to show cause. 5 Pursuant thereto, the service return was received from opposite parties no. 1 and 2 (review petitioners no. 1 and 2) after valid service of notice. When the matter was listed on 23.09.2015, as an abundant caution, this Court directed to serve an extra copy of the writ petition, either on Mr. D. Mohapatra, learned counsel, or Dr. A.K. Mohapatra, learned Senior Counsel, who usually appears for Utkal University so as to enable them to obtain instruction, and this Court adjourned the matter for a period of one week. The copy of the said writ petition was also served on Dr. A.K. Mohapatra, learned Senior Counsel through his associate, who usually appears for opposite parties no. 1 and 2-Utkal University (review petitioners no. 1 and 2), and receipt of showing service of extra copy of the writ petition was also filed on 17.10.2015, and the associates of Dr. A.K. Mohapatra, learned Senior Counsel entered appearance by filing vakalantnama on 06.11.2015. Then, the matter was taken up on 09.11.2015. Since none appeared for the review petitioners no. 1 and 2, in spite of giving several opportunities by issuing notice through registered post with A.D. and special messenger, considering the claim of the writ petitioner seeking for regularization of service, this Court disposed of the writ petition on 09.11.2015 directing the opposite parties (review petitioners) to regularize the service of the writ petitioner within a period of three months from the date of communication of that order. When the said order dated 09.11.2015 was not complied with, the writ petitioner filed CONTC No. 433 of 2016 6 and this Court issued notice to opposite parties (review petitioners) on 09.09.2016. In response to the said notice, Review Petition No. 338 of 2016 was filed on 22.12.2016, without certified copy of the order dated 09.11.2015. On receipt of certified copy, the same was filed only on 21.07.2017. As such, the review application was validly presented before this Court on that date, i.e., on 21.07.2017, thereby causing delay of 620 days, which, after excluding limitation period of 30 days, comes to 590 days. Sequence of facts, as narrated above, would clearly indicate that there were gross laches on the part of the authority concerned in participating the proceeding before the writ Court as well as in filing the application for review.
4. While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately 7 conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
5. As has been already stated, the reason ascribed justifying "sufficient cause" to condone the delay is nothing but bureaucratic movement of the file in the office. In Collector (LA) v. Mst. Katiji, AIR 1987 SC 1353, the apex Court made a significant departure from the earlier judgments and observed:
"The legislature has conferred the power to condone delay by enacting Section 5 of the 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 lifepurpose 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 realised that:
(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.
(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 preferred for the other 8 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 mala fides. 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 legalise 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 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 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- nongrata 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."
6. In N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222, the apex Court went a step further and made the following observations:
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"It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
7. In P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276, the apex Court while reversing the order passed by the High Court which had condoned 565 days' delay in filing an appeal by the State against the decree of the Sub-Court in an arbitration application, observed that Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds.
8. In Vedabai v. Shantaram Baburao Patil, AIR 2001 SC 2582, the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.
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9. In State of Nagaland v. Lipok Ao, AIR 2005 SC 2191, the Court referred to several precedents on the subject and observed that the proof of "sufficient cause" is a condition precedent for exercise of discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The Court also took cognizance of the usual bureaucratic delays which take place in the functioning of the State and its agencies/instrumentalities and observed:
"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 passingon-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents 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 of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal."
10. The apex Court in Maniben Devraj Shah v. Muinicipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, held in paragraphs 24 and 25 to the following effect:
"24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by 11 the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
25. In case involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest". After holding as above, in paragraph 28 the apex court has stated as follows:
"28.The application filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:
(a) The name of the person who was having custody of the record has not been disclosed.
(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.
(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.
(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial court were not filed till 23-08-
2010 despite the fact that Shri Sirsikar had given intimation on 12- 5-2003 about the judgments of the trial court.
(e) Even though the Corporation has engaged a battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be appealed against."
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11. In Amalendu Kumar Bera and others v. State of West Bengal, 2013 (4) SCC 52, the apex Court in paragraph-9 held as follows:
"We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent State. There is no dispute that the expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than the technical detection of "sufficient cause" for explaining every day's delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in Union of India v. Nripen Sarma, AIR 2011 SC 1237, the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant Union of India. The High Court refused to condone the delay on the ground that the appellant Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became operational and barred by limitation."
12. In Office of the Chief Post Master General & Ors. v Living Media India Ltd. & Anr., 2012 AIR SCW 1812, it has been held as follows:
"13. In our view, it is the right time to inform all the Government bodies; their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. 13 Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dated, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
13. Considering the principles indicated in the above cited decisions, which are applicable to the present case, as the application seeking for condonation of delay does not bear any explanation indicating "sufficient cause" much less reasonable explanation, there is no scope to entertain the said prayer for condonation of delay in filing the appeal, which is devoid of merit.
14. Similar question had come up for consideration by this Court in State of Orissa v. Bishnupriya Routray 2014(II) ILR-CUT 847: Vol. 118 (2014) CLT 580. The judgment of this Court was assailed before the apex Court in SLP but the same was dismissed and as such, the apex Court observed that if any delay caused due to the laches on the part of the authority, then any loss to be caused that should be realized from the officer concerned who is responsible for the same.
15. From the pleadings available on record, it can be seen that an erroneous calculation has been made by the review petitioners with regard to the period of delay caused in preferring the review application. 14 It is stated that there was delay of 369 days in preferring the application for review, whereas in effect there was delay of 590 days and as such each day's delay has not been explained in the application itself. In view of the vague explanation given in the affidavit supporting the application for condonation of delay, the same does not deserve to be accepted, especially when despite opportunity being given the review petitioners did not avail the same. As a result, the order sought to be reviewed has been passed by this Court. Since evidently on receipt of notice to show cause in the contempt matter, the authorities rose from the slumber and. took steps seeking for review of the order impugned, which is not permissible, and that by itself cannot be construed to be "sufficient cause" for condoning the delay, that too of 590 days which has been caused in the instant case.
16. In view of the aforesaid facts and circumstances, and the sketchy explanation given by the review petitioners for the delay of 590 days in filing the application for review, this Court is not inclined to accede to the prayer made in the application for condonation of delay, which is accordingly rejected. Consequentially, the review petition stands dismissed being barred by limitation.
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DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 18th October, 2017, GDS/Ajaya 15