Madhya Pradesh High Court
State Of M.P. And Ors. vs Rajiv Gupta And Anr. on 15 September, 2006
Author: Shantanu Kemkar
Bench: Shantanu Kemkar
ORDER Shantanu Kemkar, J.
1. The appeal against the impugned judgment and decree dated 30-4-2005 is barred by limitation as it has been filed 94 days beyond the period of limitation.
2. In the application it has been stated that the Government pleader appearing for the appellants before the Trial Court did not inform the appellants about passing of the judgment and decree. On 26-7-2005 when the appellants got information about the said judgment and decree the application for certified copy was made. The certified copy was received by the appellants on 16-8-2005. Thereafter the matter was sent to the Law Department of the State Govt. for permission to file the appeal. After examination the Law Department granted the permission to file appeal on 28-10-2005. Thereafter, the Officer-in-charge of the case was appointed who contacted the Office of the Advocate General at Jabalpur and after getting the appeal prepared it was filed on 19-11-2005. In support of the application for condonation of delay the appellants have filed affidavit of Officer-in-charge of the case Shri C.P. Nigam, Tehsildar, Capital Project (Nazool) Bhopal.
3. The respondents opposed the application by stating that the grounds stated in the application have not been substantiated by proper reasons. It is also stated that as the application for condonation of delay has not been filed along with the appeal as per provision of Order 41 Rule 3-A of the Code of Civil Procedure, the appeal itself is not maintainable. The respondents placed reliance on the judgments of this Court to contend that in the absence of filing of the application for condonation of delay at the time of presentation of appeal the appeal itself is not maintaiable. The respondent also relied on an order of this Court passed in case of Geetarani Ghosh v. Bhagwati Bai and Ors. 2006(2) MPLJ 45 to contend that a valuable right has accrued in favour of the respondents on expiry of limitation which cannot be disturbed on the basis of flimsy, baseless or unexplained grounds.
4. So far as the contention of the respondents that the application for condonation of delay having been filed subsequently and the appeal being not accompanied by the application for condonation of delay, the appeal is not maintainable, in my view the contention has no force. The Supreme Court in the case of State of M.P. and Anr. v. Pradeep Kumar and Anr. after examination of Rule 3-A of Order 41 has held that though the word 'shall' employed in Sub-rule (1) of Rule 3-A indicates that the requirement is peremptory in tone but such peremptoryness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the Court. The Supreme Court also held that the rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. It observed that non filing of the application seeking condonation of delay along with the appeal may happen due to some mistake or lapse and such mistake can be committed even by vigilant litigant. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. Rule 3-A has been provided to inform the appellant who filed a time barred appeal that the same would not be entertained unless it is accompanied by an application explaining the delay and to communicate a message to the respondents that it may not be required for him to meet the grounds of appeal because the Court has to deal with application for condonation of delay as a condition precedent. It has also been observed that the rule is not fatal if the appellant has not filed application for condonation of delay along with the memo of appeal at the first instance. The deficiency is curable and if the application is filed subsequently the appeal can be treated to be presented in accordance with the requirement of Order 41 Rule 3-A of the CPC. Thus, this objection of the respondents is rejected.
5. Coming to the reasons assigned by the appellants in the application for condonation of delay, it is true that after passing of the judgment by the Trial Court on 30-4-2005 the application for certified copy was filed on 26-7-2005. It is stated that the Govt. pleader did not inform about the passing of the judgment and decree till then. After receipt of the copy the matter was sent to the Law Department seeking permission to file the appeal. The communication of the Law Department was received on 28-10-2005. Thereafter the Officer-in-charge of the case was appointed who contacted the Office of Advocate General and after getting the appeal prepared it was filed on 19-11-2005 and in the process the delay is of 94 days has occurred.
6. The Supreme Court in case of G. Ramegowda, Major v. Special Land Acquisition Officer has held thus:
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.
In yet another case of State of Haryana v. Chandra Mant , it has been held thus:
When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureacratic methodology imbued with the note-making, file pushing, and passing-on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. 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 or 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 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. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the casue laid by the State vis-a-vis private litigant could be laid to Prove strict standars of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. 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 an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.
7. In the case of Geetarani Ghosh v. Bhagwati Bai and Ors. (supra), the appellant could not satisfactorily explain the delay of more than two years in filing the appeal. The learned Single Judge on examining the facts stated in the application seeking condonation of delay held that the grounds are not properly explained and no cogent explanation of delay was offered by the appellants. In the present matter the delay of 94 days has been found to be satisfactorily explained by the appellants. Thus, the facts of that case are squarely distinguishable and the same are not applicable in this matter.
8. Thus, having regard to the explanation offered by the appellants in my considered view, the appellants have satisfactorily explained the reasons for non-filing the appeal within limitation. The application is allowed and the delay in filing the appeal is condoned.
List the appeal for admission and for consideration of application for stay after a week.