Abdul Gaffar vs The Commissioner And Others on 21 January, 2020

[Cites 10, Cited by 1]

Allahabad High Court

Abdul Gaffar vs The Commissioner And Others on 21 January, 2020

Equivalent citations: AIRONLINE 2020 ALL 222

The counsel for the petitioner argues that an ex-parte decree was passed on 30.12.1980 in favour of the petitioner. On 11.8.1982 and 24.10.1983, two applications were filed seeking recall of the ex-parte decree, first was by the State Government and the second one was by the Nagar Nigam. Both the said applications came to be dismissed on 13.6.1986 and the said order has attained finality and has not been challenged in any Court of law. The counsel for the petitioner argues that on the basis of ex-parte decree, the petitioner had filed another suit in the year 1988 being Suit No. 185 of 1988, which too was decreed. The counsel for the petitioner further argues that the proceedings with regard to mutation entries in the revenue records were initiated in between the parties and in all the said proceedings reference of ex-parte decree dated 30.12.1980 was made, as such the State Government and the respondent authorities were well aware of the ex-parte decree, however, on the basis of a report of the A.D.M. dated 27.10.2001, whereby for the first time he advised that the steps be taken for recall of the ex-parte decree. An application was moved along with delay condonation application on 30th January, 2002. The Court below vide its order dated 15.4.2008, allowed the application under Section 5 of the Indian Limitation Act mainly on the ground that ex-parte order dated 30.12.1980 was obtained on the basis of documents, which prima facie appeared to be forged. He further held that in the cases where the decree is obtained by playing of fraud, Section 5 of the Indian Limitation Act will have no applicability and he thus proceeded to condone the delay. The said order dated 15.4.2008 was challenged by filing a revision, which too was dismissed vide order dated 15th May, 2008.

The counsel for the petitioner has placed reliance on the judgments of this Court in the case of [2016(133) RD 66]; Shripal Singh Chauhan and others v. Special Judge, C.B.I. Court No. 4 as well as judgment of the Supreme Court in the case of Basawaraj and Another v. Special Land Acquisition Offier; (2013) 14 SCC 81.

He submits that it is well settled that while deciding the application for condonation of delay, it is incumbent upon any judicial authority to decide whether the delay is sufficiently explained or not. He further argues that it is equally well settled that while deciding the delay condonation application, the Court is not required to go into the merits of the decree passed, which is to be ignored while deciding the application under Section 5 of the Indian Limitation Act. He further argues that delay by itself creates a right in favour of the defendants, which cannot be taken away easily in a casual manner, as has been done by means of the impugned orders. He, thus, argues that the order dated 15.4.2008 as well as the revisional order deserve to be set aside on that score alone.

The Standing Counsel justified the said orders arguing that a categorical finding has been recorded by the Court below that the earlier ex-parte decree was obtained on the basis of fraudulent documents and in that event Section 5 of the Limitation Act has no applicability, as has been rightly held by the Court below.

On the basis of the arguments advanced, the point of consideration in the present matter is whether the Courts below have erred in condoning the delay of about 22 years, without even recording any finding with regard to availability of sufficient cause for doing so.

Certain facts, which are important and have a relevant bearing on the present case are that on 30.12.1980, the ex-parte decree was passed. An application for setting aside the said ex-parte decree was filed by the State Government on 11.8.1982 (Annexure-4) on the ground that a decree has been obtained by concealing true facts and on forged documents. An application was also filed by Nagar Mahapalika, Varanasi on 24.10.1983 seeking recall of the ex-parte decree (Annexure-5). The application filed by the Nagar Palika was dismissed in default on 13.6.1986 and the said order has attained finality. It is also relevant that out of mutation proceeding, a revision was filed being Revision No. 92 of 1994, which was decided on 8.6.1995 (Annexure-7). In the said revision, a reference was made to the decree dated 30.12.1980 and the said revision was decided after hearing the Standing Counsel for the State Government. The petitioner herein executed a sale deed and sold the property in question on 17.10.1996 and constructions were also raised over the property in question. It is only on 24.10.2001 that the Additional District Magistrate in his report gave opinion seeking recall of the ex-parte decree. In the affidavit filed in support of delay condonation application, the ground taken was that a complaint was made and in the report dated 27.10.2001, an opinion was given by A.D.M. seeking recall of the ex-parte decree dated 30.12.1980. There was no mention of the earlier application filed by the State seeking recall of the ex-parte decree on 11.8.1982 nor was there any reference of the application filed by the Nagar Mahapalika, Varanasi on 24.10.1983 seeking recall of the ex-parte decree, which was dismissed. The Court below while passing the order impugned, allowed the delay condonation application condoning the delay without reverting to any of the said facts, as noted above.

It is no doubt true that a liberal approach should be adopted in condoning delay, however, it is equally well settled that delay cannot be condoned by mere asking and the application for condonation of delay should be supported and should at least disclose 'sufficient cause' for not approaching the Courts within the limitation prescribed.

The Hon'ble Supreme Court in the case of Maniben Devraj Shah v. Municipal Corporation of B rihan Mumbai; (2012) 5 SCC 157 considered the entire scope of the words 'sufficient cause', as contained in the Limitation Act and recorded as under:-

"14. We have considered the respective arguments/submissions and carefully scrutinised the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.

16. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: (AIR pp. 363-64, para 7) "7. In 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 in order that judicial power and discretion in that behalf should be exercised to advance substantial justice."

17. In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3) "3. 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 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."

(emphasis in original)

18. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] , the Court went a step further and made the following observations: (SCC pp. 127-28, paras 9, 11 & 13) "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

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11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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13. 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."

19. In P.K. Ramachandran v. State of Kerala [(1997) 7 SCC 556] , this 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: (SCC p. 558, para 6) "6. 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."

20. In Vedabai v. Shantaram Baburao Patil [(2001) 9 SCC 106] , 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.

21. In State of Nagaland v. Lipok Ao [(2005) 3 SCC 752 : 2005 SCC (Cri) 906] , 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: (SCC p. 757, para 8) "8. ? 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."

22. 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: (Lipok Ao case [(2005) 3 SCC 752 : 2005 SCC (Cri) 906] , SCC p. 759, para 13) "13. 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."

23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

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 cases 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."

In the present case, there is no explanation or consideration of the fact that earlier applications were filed for recall of the ex-parte decree, which were not pursued for the reasons bast known to the State. The trial Court and the revisional Court have further ignored the facts that subsequent developments in the form of construction over the property in question as well as the execution of the sale deed had crystallized certain rights in favour of the petitioner and thus the application for condonation of delay did not deserve to the allowed. There is further no consideration of the fact that in the year 1995, the revisional Court after hearing the State Government had decided the revision, in which there was specific mention of the ex-parte decree. Thus, the knowledge to the State Government is clearly established from their application filed for condonation of the delay in the year 1982 as well as from the decision in the year 1995 in the revision. An opinion of the Officer of the State Government cannot form the basis for holding that sufficient cause existed for condonation of delay.

The Courts below have further erred in giving findings, on prima facie merits of the decree without there being any record to justify the said findings.

In view of the said facts, I have no hesitation in holding that the order condoning the delay dated 15.4.2008 deserves to be set aside and on the same grounds, the revisional Court order dated 15th May, 2008 deserves to be quashed. The orders dated 15.4.2008 and 15.5.2008 are quashed.

The writ petition is allowed. No order as to costs.

Order Date :- 21.1.2020 SR

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Allahabad High Court