Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dr. Naresh Grover on 16 August, 2013
1
FA No. 426 of 2012
16.8.2013
Shri Santosh Yadav, PL for the appellant.
Shri Rajiv Mishra, counsel for the respondent.
Initially, learned Panel Lawyer prays for further adjournment to file some affidavit in compliance of the earlier direction of this court. On perusing the earlier order sheets dated 28.6.13 and 29.7.13, I have not found any direction of this court. As such at the request of the State counsel the case was adjourned to file some affidavit. It is apparent that no such affidavit has been filed.
2. The case is listed today for consideration of IA No.4778/12, appellant's application under section 5 of the Limitation Act for condoning the delay in filing this appeal as the same is filed barred by six years and 121 days. The same is supported by an affidavit of Atul Singh S/o Shri N.P.Singh, Tehsildar (Nazul) Bairagarh, Bhopal. Such IA was drafted on 30.3.12 and the affidavit was sworn on 30.3.12 and the same is placed in this court along with the appeal.
3. After receiving the notice of aforesaid IA, the Vakalatnam has been filed on behalf of the respondent No.26.4.2013. Since then more than 3 ½ months has been passed. Meanwhile, on three occasions, the case has been listed before the Court for consideration of the IA but it is apparent fact that till today, the respondent has not filed any reply of the same. It shows that the respondent is not interested to file the reply of this IA, hence the IA is taken-up for consideration.
4. Learned Panel Lawyer, after taking me through the averments of the IA argued that initially the impugned ex-parte judgment and decree was passed by the trial court on 2.8.2005 whereby the suit of the respondent filed for declaration and perpetual injunction against the appellant with respect of some Nazul land was allowed. As per further averments, the concerning Advocate who was appointed on behalf of the State was not co-operating to the department. Pursuant to that he was not giving the appropriate 2 FA No. 426 of 2012 information regarding the status of the case to the OIC or other officials, inspite that, the written statement was filed on 28.9.04. Although, the case was looked-after by the appointed Govt. Advocate, inspite that same was proceeded ex-parte on 15.12.2003 and case was fixed for 12.1.04. Subsequent to it, another Govt. Advocate Shri V.K.Joshi, was engaged whose Vakalatnama was taken on the record on the cost of Rs.200/-. Subsequent to it, the case was transferred to some special court and, in the lack of such information of transfer of the case, the OIC could not appear in the matter and pursuant to that the appellant's evidence could not be recorded and ultimately, the suit of the respondent was decreed ex-parte as stated above. As per further averments, subsequent to it the information regarding such ex-parte decree was not received in the office of the appellant upto 2007 but on receiving such information, an application was moved to obtain the certified copy and looking to the nature of the matter for obtaining the sanction to file the appeal the opinion was required from the different officers of the State then such formalities have taken time and ultimately on dated 20.12.11, the sanction for filing the appeal was given and such sanction was received by the OIC on 3.1.12 thereafter he approached Govt. Advocate on 30.1.12 who had also given some instructions to the OIC. After completing the same the appeal was filed on 12.4.12. With these averments with a prayer that the stated cause be treated to be sufficient for condoning the alleged delay in filing the appeal, the impugned application has been filed.
5. It is apparent fact as stated above, inspite extending opportunity to the respondent, no reply of this application has been filed. In such premises, the unrebutted set of facts regarding sufficient cause for condoning the delay is on record on behalf of the appellant. So, firstly, in the lack of rebuttal of such facts, the cause stated on behalf of the appellant for condoning the delay, could not be discarded.
6. Apart the aforesaid, it is settle proposition of the law as laid down by the Apex Court in various decisions that while dealing with the 3 FA No. 426 of 2012 application under section 5 of the Limitation Act that and to examine the sufficient cause under such provision, court should adopt the lenient view with justice oriented approach so also keeping in view the stake of the litigation and no proceedings should be thrown away mere on the question of limitation as barred by time. So, keeping in view such principle if the case at hand is examined then it is apparent that the alleged delay has been caused in filing the appeal because of the officials of the appellant and due to the procedure of obtaining the sanction from the authority to file the appeal so also in the lack of information regarding status of the case and lack of the information about transfer of the case from one court to another special court. Hence the aforesaid cause could not be discarded by holding the same to be in sufficient cause for condoning the delay. Even otherwise looking to the nature and stake of the impugned litigation in which an ex- parte judgment and decree for declaration and perpetual injunction has been passed against the appellant with respect of the Nazul land which requires reconsideration not only on factual matrix but also in respect of the legal question, Whether the same could have been passed with respect of the Nazul land in the available scenario or not. Thus taking into consideration such stake of litigation, in order to decide the material questions involved in the matter, I adopt the lenient approach with justice oriented approach to consider the aforesaid application filed under section 5 of the Limitation Act.
7. My aforesaid view is fully fortified by the principle laid down by the Apex Court in the matter State of Haryana Vs. Chandra Mani- (1996) 3 SCC 132 in which it was held as under :-
"11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that 4 FA No. 426 of 2012 litigants including the State are accorded the same treatment and the law is administered in an even- handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic 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 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 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 cause laid by the State vis-a-vis private litigant could be laid to prove strict standards 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.5 FA No. 426 of 2012
The individual would always be quick in taking the decision whether he would pursue 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 officers or servants."
The aforesaid principle was further reiterated in the matter of Special Tehsildar, Land Acquisition Vs. K.V.Ayisumma- (1996) 10 SCC 634 as also in the matter of Nand Kishore Vs. State of Punjab-(1995) 6 SCC 614 and later in the matter of State of Bihar and others Vs. Kameshwar Prasad Singh- (2000) 9 SCC 94.
8. In view of aforesaid discussion, this IA deserves to be allowed but while allowing the IA, the court has to compensate the respondent also in this regard. So, in such premises, subject to payment of cost of Rs.10,000/- to the respondent by the appellant, the aforesaid IA is allowed and the entire delay of 6 years and 121 days in filing the appeal is hereby condoned. The cost is to be paid within two months. Payment of the cost, shall be the condition precedent for any further hearing on any question of this appeal.
9. After condoning the delay in filing the appeal, appellant's counsel is heard on the question of admission.
10. Having perused the impugned judgment along with the record of the trial court, this appeal appears to be arguable, hence the same is admitted for final hearing.
11. Respondent's counsel has taken notice of this admission, hence no further notice is required.
12. On asking the counsel present to make their submission on IA No.4779/12 an application for grant of stay against operation and execution of the impugned ex-parte decree, on which, respondent's counsel seeks for and is granted period of 15 days to file the reply of the same.
13. Let this matter be placed in the second week of September, 2013 6 FA No. 426 of 2012 for consideration of aforesaid IA.
14. As an interim measure, till disposal of the aforesaid IA, the parties are directed to maintain the status-quo with respect of the possession and the nature of the disputed property as it exists today.
C.C as per rules.
(U.C.Maheshwari) Judge MKL