Motibhai Revabhai Prajapati S/O ... vs State Of Gujarat on 19 April, 2022

[Cites 33, Cited by 0]

Gujarat High Court

Motibhai Revabhai Prajapati S/O ... vs State Of Gujarat on 19 April, 2022

2. This petition under Article 227 of the Constitution of India is filed by the petitioners - original respondent Nos. 6 to 12 assailing an order dated 10.12.2018 passed in Misc. Civil Application No. 133 of 2016 by the learned 2nd Additional District and Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad. By the said application, the respondent No. 1 herein - State had prayed for to condone the delay of 2308 days, caused in preferring an appeal under O.41 R.(1) and (2) and Section 96 of the of Civil Procedure Code, 1908 (CPC) against a judgment and order dated 30.04.2010, decree dated 13.05.2010, passed in Regular Civil Suit No. 483 of 1969 by the learned Principal Senior Civil Judge, Ahmedabad (Rural), which came to be allowed and the delay caused in preferring the appeal was condoned.

3. Heard, learned Senior Advocate Shri I. H. Syed with learned advocate Mr. Ankit B. Pandya for the petitioners - original respondent Nos. 6 to 12, learned Assistant Government Pleader Ms. Megha Chitaliya for the respondent No. 1 - State, learned advocate Ms. Vidita Jayswal for the respondent No. 4. The rest are though served, none has put in appearance.

4. The learned senior advocate for the petitioners, with all vehemence at his command, submitted that the impugned order passed by the learned District Judge, is illegal, perverse and against the settled principles of law. He submitted that merely Page 2 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 because the applicant therein was State, such a huge delay ought not to have been condoned. He submitted that the suit was of the year 1969, wherein, decree came to be passed in the year 2010 and challenge to that decree is being made after lapse of period of 2308 days, which in no case could have been allowed.

4.1 The learned senior advocate for the petitioners submitted that in the application for condonation of delay, the case put forward by the State was that after the reference received from the Revenue Court (Mamlatdar and ALT), the civil Court did not issue any notice or summons to the Collector or to any other revenue officer and thereafter also, the State did not receive any intimation in respect of the final judgment and decree dated 30.04.2010. He submitted that false statement has been made inasmuch as State was duly served with the summons on 02.05.2009. Thereafter, notice was also served upon the Collector on 27.08.2009 and the matter was adjourned for about 41 times but none had remained present on behalf of the State and therefore, the explanation given by the State for condonation of delay of 2308 is neither plausible nor acceptable. It is submitted that material fact to the effect that summons was served to the the concerned State authority was suppressed before the learned District Court and thereby, in the submission of the learned senior advocate for the petitioners, the State committed fraud upon the Court.

4.2 Thus, making above submissions, it is urged that this petition may be allowed by setting aside the impugned order condoning the delay.

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C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 4.3 In support, the learned senior advocate for the petitioners has relied upon following decisions:

i) State of Madhya Pradesh and Others v. Bherulal, (2020) 10 SCC 654;

ii) Ramsangbhai Samjibhai Chunara v. Hansrajbhai Ravjibhai Kadiwar, dated 30.09.2021 passed in Special Civil Application No. 16766 of 2014;

iii) Postmaster General and Others v. Living Media India Ltd. and Another, (2012) 3 SCC 563;

iv) State of Gujarat v. Bajarandas Hansdas Kubavat, 2016(0) AIJEL-HC 235962;

v) Chabaji Balaji - Since deceased v. Gujarat Revenue Tribunal, 2018 (0) AIJEL-HC 239079;

vi) State of Gujarat and Others v. Kasiben Ratanjibhai Gamit, 2021 (3) GLR 1987.

5. Per contra, learned AGP, while heavily opposing this petition and supporting the impugned order condoning the delay, submitted that neither summons of the decision of the revenue Court was issued nor the notice of final hearing was issued by the Court and thereby, for the period between 1994 to 2010, the suit was not proceeded and thereafter, in the absence of any evidence being produced and without affording any opportunity of hearing to the State, the suit was decreed by judgment and order dated 30.04.2010 in favour of the original owner, which is against the settled principles of law and against the principles of natural justice also. It is submitted that the concerned authority came to know about such an outcome in the suit only on 08.03.2016 and as soon as the concerned authority came to know as to passing of the judgment and decree, necessary proceedings were started in which, delay had been occurred Page 4 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 which has been rightly condoned by the learned District Judge.

5.1 It is submitted that the judgment and decree was passed ex parte, without affording any opportunity of hearing and the learned District Judge has rightly appreciated such fact and thereby, has rightly condoned the delay, so as to give an opportunity to put forward the case of the State on merits.

5.2 Thus, making above submissions, it is requested that this petition being devoid of any merits, may be dismissed.

5.3 In support, the learned AGP has relied upon following decisions:

i) Basavalingappa v. Special Land Acquisition Officer, Bangalore, 1988 (0) GLHEL-SC 9097;

ii) N. Balakrishnan v. M. Krishnamurthy, 1998 (0) GLHEL-

SC 18680;

iii) State of Karnataka v. Y. Moideen Kunhi (dead) by LRs. and Others, (2009) 13 SCC 192;

iv) State of Gujarat v. Ravi Sales Agency, 2013 (0) GLHEL-HC 229751;

v) State of Assam v. Susrita Holdings Pvt. Ltd., (2014) 11 SCC 192;

vi) Aquafil Polymesr Company Pvt. Ltd. v. Shyam Steel Industries Ltd., 2014 (0) GLHEL-HC 231376;

vii) Paschim Gujarat Vij Co. Ltd. v. Shantuben Sanjaybhai Mer, 2022 (0) AIJEL-HC 243638;

viii) Ram Nath Sao v. Gobardham Sao, (2002) 3 SCC 195;

ix) G. Ramegowda, Major v. Special Land Acquisition Officer, Bangalore;

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x) Chief Controlling Revenue Authority v. Gujarat Borosil Ltd., 2014(0) GLHEL-HC 231377.

6. On the other hand, learned advocate Ms. Vidita Jayaswal for the respondent No. 4, while supporting the impugned order, adopted the submissions made by the learned AGP and submitted that the impugned order being passed after due consideration of the facts and circumstances of the case as well as the settled legal position, the Court may not interfere in the same and accordingly, it is urged that the petition may be dismissed.

7. The Court has considered the rival submissions and also gone through the material available on record as well as perused the decisions relied upon by both the sides.

7.1 At the outset, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon'ble Supreme Court, read as under:

"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].

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58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P . and others vs. Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].

59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.

60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.

61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 Page 7 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 possibly to keep such exercise entirely in the domain of the discretion of High Court.

62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.

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(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the Page 9 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

7.2 Thus, exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals / Courts within the bounds of their authority, to ensure that law is followed by tribunals / Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very Page 10 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 sparingly exercised.

7.3 The Apex Court in a recent decision in Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 has observed as under:

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Considering. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

7.4 Thus, a petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise.

8. Nonetheless, since much water has been spilled over the merits of the case, the Court deems it proper to examine the case. It is submitted by the learned senior advocate for the petitioner that though the respondent - State was in very much know of the judgment and decree passed in the suit of 1969 in the year 2010, after a huge delay of 2308, preferred it be to challenged before the learned appellate Court concerned. It is also submitted that merely because the respondent is a government authority, such a leverage should not be given and delay ought not to have been condoned, taking away the legitimate right of the petitioners. Whereas, the case of the respondent - State is that they were not aware about the outcome in the suit till 2016 and immediately on coming to know about the same, they acted upon.

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C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 8.1 In this regard, if the observations made by the learned District Judge are referred to, the same read as under:

"6. Read the application, heard ld. advocate for both the parties, perused the documents as relied upon by the parties, it transpires that the present opponent of this application were the original plaintiff in R.C.S.No.483/1969 for permanent injunction and for possession of the suit land. The suit was filed in the year 1969 and during the proceeding of the suit the government was defendant No.2 and during the proceeding of the suit Nandkishor Trivedi was examined on 15.12.1972 then after Hemangbhai Prathmeshbhai Desai examined on 16.03.1973 and then after on 26.11.1973 defendant No.1 & 2 had given application to refer issue to the Mamlatdar and the court has passed the order and finally the issue was referred to the Mamlatdar court for decision. On going through the Roznama of the suit it appears that it was pending and awaiting the decision of the Mamlatdar court and lastly the matter was adjourn to 31.08.2001 for awaiting the decision of the Mamlatdar Court then after on going through above it does not clear that when civil court has received the decision of the Mamlatdar Court but on 25.02.2009 it was pending for the decision of Mamlatdar Court then after there is no substantial proceeding in the matter and on going through the Rozkam of 02.05.2009 it transpires that the defendant No.2 has died whereas notice to defendant No.3 served. Now, on going through the record it transpires that the defendant No.2 is the government and it cannot be accept that the government can died then after on 03.02.2010 court heard the argument of the plaintiff and then after on 03.04.2010 the court has pronounced the judgment. Thus, looking to the proceeding of the R.C.S. No. 483/1969 the learned D.G.P. for the Government did not remained present before the court, there is no evidence on the part of the defendant No.2 only plaintiff has given evidence whereas there is no evidence on the part of the defendant nor the defendant No.2 has got opportunity of argument and therefore the court has pronounced the judgment in absence of any evidence or argument on the part of defendant No.2. Now, so far as the delay is concerned it remains the submission on the part of government that for a longer period the matter was remained idle without any proceeding as one issue of tenancy was referred to the revenue court for a decision and then after court has not given any intimation to the Page 12 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 defendant when the decision of referred issue has been received by the civil court and therefore the defendant could not remained present before the court, further stated that the defendant No.2 is the government and government has to take the work through its officers and servants and even the officers who were aware all the facts as regard the proceeding of the suit have transfer and therefore the defendant No.2 could not taken necessary care to attend he court and further stated that the defendant No.2 is the government and therefore it is to prefer the appeal only after getting the opinion from the concerned officer and therefore it takes time to file the appeal and therefore there is delay in preferring the appeal.

7. On going through judgment of the trial court it appears that there is no evidence on the part of the defendant hence the judgment is without evidence on the part of defendant and in its absence. Thus, the judgment is not on merit and as per settled principal of law matter to be decided on merit so the substantial justice can be done to the concerned party. Here the applicant is the government hence diligence and care from the government cannot be expected as can be expected from individual person because the government is impersonal machinery and has to do work through its officer and employees and even with the passing of time its officers and employees are being transferred/changed and liability is changed from officer to officer and here judgment is the result of absence of the applicant, in such a case to decide the matter on merit it is necessary to entertain the appeal by allowing the present application. So fas as the legal position as regard condonation of delay is concerned sufficient cause imply by a legislature. In the Limitation Act is adequately elastic to enable the court to apply the law in meaningful manner which sub-serve the needs of justice that being the life purpose for existence of institution of court, inordinately a litigant does not take to benefit by lodging appeal late, refusing to condoned delay can result in a meritorious matter being thrown out at the threshold and cause of justice being defeated as against this when delay is condoned the highest that can happen is that a caused would be decided on merit after hearing the party, when substantial justice and technical consideration are pitted against each and every cause of specified justice deserves to be preferred that the other side cannot claim to have vested right in injustice being done because of non-

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C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 deliberate delay. In the even of decision to file an appeal needed prompt action should be persuade by the officer responsible to file an appeal and he should be made personally responsible for lapses if any, equally the State cannot be put on the same position as an individual. The individual would always be quick in taking the decision where he would persuade 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 officer and servant, the purpose of limitation act was not to destruct the rights. It is founded on public policy fixing a life span for the legal remedy, for the general welfare. The primary function of the court is to adjudicate dispute between the parties and to advance substantial justice. However, in 2008(228) ELT 162 Supreme Court has observed that it is axiomatic that condonation of delay is a matter of discretion of the court, Sec.5 of the Limitation Act does not say that the discretion can be exercise only if the delay is within a certain limit, length of delay is not matter except validity of the explanation is the only criterion. Thus, taking all these observation of the Hon'ble Supreme Court as regard the condonation of delay the applicant is the government hence the judgment is without evidence or being heard the defendant and therefore judgment is not on merit and therefore to decide the dispute between the parties on merit it appears that just and proper to entertain the appeal by condoning the delay in preferring the appeal. Thus, here no doubt the opponent has also relied on certain citations but the primary function of the court is to adjudicate dispute between the parties and to advance substantial justice and for that purpose it is necessary to condon the delay and for the reason assigned here above I came to the conclusion that the delay of 2308 days in filing the appeal against the judgment and decree of Principal Sr. Civil Court Ahmedabad (Rural) dtd. 30.04.2010 and 13.05.2010 respectively should be condoned. Hence, the present application of the applicant deserves to be allowed hence I pass the following order in the interest of justice."

8.2 The above observations go to show that the decision of the trial Court was not on merits as there was no evidence on the part of the State authority. The learned District Judge has also observed that, "here the applicant is the government hence diligence and care from the government cannot be expected as Page 14 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 can be expected from individual person because the government is impersonal machinery and has to do work through its officer and employees and even with the passing of time its officers and employees are being transferred/changed and liability is changed from officer to officer and here judgment is the result of absence of the applicant, in such a case to decide the matter on merit it is necessary to entertain the appeal by allowing the present application.

8.3 Further, as referred to herein above, the respondent - State authority came to know about the decision of the trial Court only in 2016 and immediately, they acted upon and applied for certified copy and after getting the same, procedure for necessary approval was started, without any further delay.

8.4 It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay. Thus, it is not the length but the depth of explanation is to be weigh while dealing with the delay condonation applications.

8.5 A perusal of the impugned order reveals that the learned District Judge opined that sufficient cause was shown by the State so as to condone the delay so also this Court inasmuch as, it is the case of the respondent - State, the suit was not proceeded as the tenancy issued was pending before the revenue Court. It is further the case of the State that neither summons of decision of the revenue Court nor notice of final hearing was Page 15 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 issued by the Court concerned. That, for a period between 1994 to 21.01.2010, the suit was not proceeded and surprisingly, in absence of any evidence or sans any opportunity of being heard to the State authority, the suit was decreed in the year 2010 of which, the concerned State authority came to know on 08.03.2016 only.

8.6 As per the catena of decisions of the Apex Court, "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance the substantial justice and generally, delay in preferring the appeals are required to be condoned in the interest of justice. The Apex Court, in Indian Oil Corporation Ltd. and Ors. vs. Subrata Borah Chowlek and Ors. (12.11.2010 - SC) : MANU/SC/1252/2010 has observed as under:

"7. Having heard the Learned Counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (See: Shakuntala Devi Jain v. Kuntal Kumari and Ors. MANU/SC/0335/1968 : (1969) 1 SCR 1006; The State of West Bengal v. The Administrator, Howrah Municipality and Ors. MANU/SC/0534/1971 : (1972) 1 SCC 366; N. Balakrishnan v. M. Krishnamurthy MANU/SC/0573/1998 : (1998) 7 SCC 123; Sital Prasad Saxena v. Union of India and Ors. MANU/SC/0294/1984 :

(1985) 1 SCC 163).

8. In Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. MANU/SC/0042/1961 : (1962) 2 SCR 762, this Court held that:

In construing Section 5 it is relevant to bear in mind Page 16 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 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 favor 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 conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan ILR (1890) 13 Mad 269 "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the Appellant.

(2002) 3 SCC 195, this Court observed that:

But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper technical view of the Page 17 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lies terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.

10. In State (NCT of Delhi) v. Ahmed Jaan MANU/SC/7946/2008 : (2008) 14 SCC 582, while observing that although no special indulgence can be shown to the Government which, in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels, highlighted the following observations of this Court in State of Nagaland v. Lipok Ao and Ors. MANU/SC/0250/2005 : (2005) 3 SCC 752:

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. The expression 'sufficient cause' should, therefore, be considered with pragmatism in a justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process."(See also: Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma MANU/SC/0694/1996 : (1996) 10 SCC 634; State of Haryana v. Chandra Mani and Ors.

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11. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.

12. Examined on the touch-stone of the afore-noted observations, we are of the view that in the present case, the conduct of the Appellants does not indicate inaction, negligence or mala fides. The explanation furnished for the marginal delay of 59 days, in our opinion, constitutes a sufficient cause and therefore, deserves to be accepted."

(emphasis supplied) 8.7 Thus, the 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 conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.

8.8 The Court has also gone through the decisions relied upon by the learned advocates for the respective parties. If decision in Bherulal (supra) as relied by the learned senior advocate for the petitioners is referred to, the delay in the said case was due to non-availability of the documents and the process of arranging the documents, whereas, in the case on hand, the delay had occurred as the concerned authority was not knowing the outcome of the suit. There is distinction between two eventualities viz. i) having knowledge and not acted upon and ii) having no knowledge. The present one falls under second category, where the State authority had no knowledge and when Page 19 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022 C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 it came to know, they started acting upon. Thus, the said decision would be of no avail to the petitioners.

8.8.1 Next decision relied by the petitioners is in Ramsangbhai Samjibhai Chunara (supra). In the said case, no sufficient cause was shown so as to exercise the discretion. Here, in the case on hand, sufficient cause appears to have been shown to condone the delay. Hence, this decision also, would not be of any help to the petitioners.

8.8.2 Another decision relied upon by the petitioners is in Postmaster General and Others (supra). In the said case, the Court has observed that there is no explanation of sufficient cause for delay. It is held that law of limitation binds everybody equally including Government and defence by Government of impersonal machinery and inherited bureaucratic methodology cannot be accepted in view of modern technologies being used and available. There is no dispute with regard to such a proposition of law, however, in the instant case, when the Court has opined that sufficient cause has been shown, the said decision also would not help to the petitioners.

8.8.3 In another decision in Bajarandas Hansdas Kubavat (supra) as relied upon by the petitioners, no sufficient cause was shown. However, as said earlier, herein, such is not the case. Hence, this decision also, would be of no avail to the petitioners.

8.8.4 In Chabaji Balaji - Since deceased (supra), the Court was of the opinion that, "Prima facie it appears that on account of the stance taken by the petitioners in the separate civil suit, they did not deem fit to pursue the Civil Suit No. 483 of 1969.

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C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 This would indicate that the petitioners had accepted the finding of the Mamlatdar that they are not the tenants of the subject land. It is further observed that, "25. In my view having regard to the stance of the petitioners their ownership by way of adverse possession, they are not not entitled to raise the contention regarding the tenancy. The issue as regards the tenancy could be said to have stood concluded for all times to come. If the Deputy Collector thought fit not to entertain the appeal filed by the petitioners on the ground that the same was filed after a period of 36 years and such order was being affirmed by the revenue tribunal, then it would be too-much to interfere in supervisory jurisdiction under Article 227 of the Constitution of India." This decision also would be of no help to the petitioners inasmuch as the facts are different.

8.8.5 Last but not the least, in the decision in Kasiben Ratanjibhai Gamit (supra), it is held that, "law of limitation binds everyone equally including the government. Delay can be condoned but not indolence bordering on negligence. Explanation that delay occurred in processing decision by different authorities not acceptable in times when advance technology available". At the cost of repetition, it is stated that when the Court has accepted the cause for delay and the same has found to be sufficient one, this decision would not be applicable in the instant case.

8.9 So far as the decisions relied upon by the learned AGP are concerned, since the Court is of the opinion that sufficient cause was shown for condonation of delay, the Court deems it proper not to burden this judgment by discussing the same.

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C/SCA/995/2019 JUDGMENT DATED: 19/04/2022 8.10 Thus, in the totality of the facts and circumstances of the case on hand, this Court is of the opinion that the learned District Judge has committed no error, much less an error manifest, which requires interference at the hands of this Court in this petition under Article 227 of the Constitution of India.

9. In the backdrop as aforesaid, this writ petition fails and is dismissed accordingly. Rule is discharged with no order as to costs. Interim relief, if any, shall stand vacated forthwith.

[ A. C. Joshi, J. ] hiren Page 22 of 22 Downloaded on : Tue Apr 19 21:30:07 IST 2022

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