Orissa High Court
Union Of India vs Kahnei Charan Biswal on 12 September, 2017
Equivalent citations: AIR 2018 (NOC) 389 (ORI.), AIRONLINE 2018 ORI 1
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
W.A. NO. 171 OF 2017
WITH
MISC. CASE NO. 262 OF 2017
In the matter of an appeal under Chapter-VIII, Clause-10 of the
Letters Patent read with Article 4, Rule-2 of the Orissa High Court
Order, 1948 from the judgment dated 21.08.2015 passed by the
learned Single Judge in W.P.(C) No. 22356 of 2010, and in the
AFR matter of an application under Section 5 of the Limitation Act.
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Union of India ......... Appellant
versus
Kahnei Charan Biswal ......... Respondent
For Appellant : Mr. Bimbisara Dash,
Central Government Counsel.
For Respondent : None
P R E S E N T:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
DECIDED ON : 12.09.2017
VINEET SARAN, J.The above noted misc. case has been filed for condonation of delay of 637 days in preferring Writ Appeal No. 171 of 2017, by which the judgment dated 21.08.2015 passed by the 2 learned Single Judge in W.P.(C) No. 22356 of 2010 has been challenged.
2. In the application for condonation of delay, the appellant-petitioner has pleaded as follows:
"1. That W.P(C) No.22356/2010 was disposed of on 21.08.2015 by way of a judgment. The certified copy of the judgment was delivered on 08.10.2015 for which an application was made on 02.09.2015. However, the certified copy of the order was received in the Branch Secretariate of the Ministry on 24.02.2017 which was immediately sent to the FF Division, New-Delhi on the very same day. On 13.04.2017, the advice of Ministry of law & Justice, New-Delhi was received in the FF Division of the Ministry of Home Affairs.
The Branch Secretary of the Ministry of Home Affairs, Freedom Fighters Division, Kolkata received the advice of Ministry of Law & Justice on 01.05.2017 and on 03.05.2017, relevant documents were sent to Assistant Solicitor General of Government of India for High Court of Orissa for filling (sic) of writ appeal. In this process, there has been a delay of 621 days in preferring the appeal.
2. That the averments advanced in the writ appeal may be read as part of this Misc Case.
3. That the delay in preferring the appeal is not intentional but was a product of situation since the certified copy of the judgment although was obtained on 08.10.2015 but the same could only come to the Branch Secretariate of the Ministry of Home Affairs on 24.02.2017."
As is evident from the pleadings quoted above, the only explanation given by the appellant-petitioner is that the certified copy of the judgment dated 21.08.2015 was delivered on 08.10.2015 for which an application was made on 02.09.2015. Thereafter, all that has 3 been stated is that the certified copy of the judgment was received by Branch Secretariat of the Ministry on 24.02.2017. Without explaining as to what happened during the intervening period of more than 16 months, the advice of the Ministry of Law and Justice is said to have been received on 13.04.2017. Then on 03.05.2017, the relevant documents were sent to the Additional Solicitor General for the Government of India for filing the appeal in the High Court. The appeal was then filed on 20.06.2017.
3. 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 conferred on the court 4 in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
4. 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 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 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 5 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-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."
5. In N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222, the apex Court went a step further and made the following observations:
"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 6 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."
6. 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.
7. 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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8. 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 passing- on-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."
9. 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: 8
"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 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 9 applications for certified copies of the judgments sought to be appealed against."
10. 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."
11. 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, 10 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. 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."
12. 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.
13. In view of vague explanation given in the affidavit supporting the application for condonation of delay, the same does not deserve to be accepted, especially in a case where the respondent who was 90 years of age in 2010 when the writ petition was filed. He claimed the benefit of Freedom Fighter's Pension, which has been allowed by the learned Single Judge in 2015. The respondent would now be 97 years of age.
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14. In the aforesaid facts and circumstances of the case and the sketchy explanation given by the appellant for the delay in filing the appeal, we are not inclined even to issue notice to the respondents in the application for condonation of delay. Accordingly, the misc. case is rejected. Consequently, the writ appeal also stands dismissed.
Sd/-
VINEET SARAN CHIEF JUSTICE Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 12th September, 2017, SKJ/GDS True copy Sr. Secretary