Calcutta High Court (Appellete Side)
Akd West Bengal & Ors vs The Managing Committee on 11 January, 2019
02 11.01.19 M.A.T. 479 of 2018
Ct. No. 02
The Commissioner of School Education,
akd West Bengal & Ors.
Vs.
The Managing Committee,
Vidya Vikash High School (HS) & Anr.
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Mr. Kishore Dutta, Ld. Adv. Gen., Mr. Joytosh Majumder, Ld. Govt. Pleader, Mr. J. K. Gupta.
... for the appellants.
Mr. Shaktinath Mukherjee, Mr. Kalimuddin Mondal, Mr. Sankar Biswas.
... for the respondents.
Re: CAN 3482 of 2018 (Condonation of delay) This is an application for condonation of delay in preferring the instant appeal, where the challenge is made to the order of the Single Bench delivered on 22nd September, 2017 in W.P. 7040 (W) of 2016. However, the Stamp Reporter opined that there is a delay of 208 days and not 4 days as stated by the appellants.
What is required to be seen in this regard is whether the appeal is filed after 4 days from the date of expiry of the statutory period or after 208 days as opined by the Stamp Reporter.
From the certified copy of the impugned order annexed to the Memorandum of Appeal, it is revealed that the application for certified copy was filed on 26th October, 2017 and the Department assessed the folio on 18th May, 2018, which was deposited on the same day and the appellants obtained the certified copy then and there.
It is apparent that the officials of the Department of this Court have shown their lethargic and dormant attitude in dealing with the certified copies applied by the litigant. It has been brought to our notice that the Registrar (Administration) was also approached in the month of May, 2018 to see that the certified copies are made ready for delivery and handed over to the appellants, yet it took nearly 2 months time to get the assessment of the folio and thereafter promptitude is shown to make it ready for delivery and in fact the delivery was done. It is really a matter of great concern that even the Department of this Court is functioning in slow pace, an apathetic approach is also shown by the Registrar (Administration) even after the approach. Be that as it may, the record reveals that the instant appeal was filed on 18th May, 2018, i.e. the same day on which the certified copy of the impugned order was handed over to the appellants. The learned Advocate General appearing on behalf of the appellants has wrongly calculated the period of limitation, as he was under the impression that it would stop the moment the application for certified copy is filed and such limitation would reckon again after the same is made ready for delivery. Such understanding of law may be well presumed provided the application for certified copy is filed within the statutory period of limitation prescribed for filing an appeal. If the application for certified copy is filed after the expiration of the period for preferring an appeal, the entire period is required to be explained, though the time consumed for preparation of the certified copy constitutes a sufficient cause for condonation of such delay. It has been informed by the learned Advocate General that immediately after passing of the order this Court was closed for long vacation and in fact the period of limitation expires during the currency of such vacation. The certified copy was applied 4 days after the reopening of this Court following long vacation and, therefore the opinion of the Stamp Reporter that it is barred by 208 days cannot be doubted.
We do not feel that the number of delay disclosed in the application has any material bearing for consideration of the same, as neither Section 5 of the Limitation Act nor any Rules provides the disclosure of the number of days to be stated. What is sine-qua-non is that there must be a symmetry in the events narrated in the said application, which must constitute sufficient cause, being one of the paramount consideration under Section 5 of the Limitation Act. If the sequel of events narrated in the application are sufficient enough to explain the entire period of delay, there is no justification on the part of the appellant to invite the Court to decide the said application on the above statements.
The application reveals that immediately after the impugned order is passed on 22nd September, 2017 the concerned department of the Directorate of School Education started the process of filing the appeal and ultimately the Commissioner of School Education in his letter dated 13th October, 2017 requested the Legal Remembrancer, Government of West Bengal, to take steps for obtaining the certified copy of the said order. The application for certified copy was made on 26th October, 2017 and the Department of this Court assessed the folio on 18th May, 2018, when the appeal was also filed. The statements further proceed that during the pendency of an application for certified copy the learned Advocate, who conducted the writ proceeding, collected all the papers in anticipation that the approval may take some time and forwarded the same to the Secretary of the School Education, who on 31st January, 2018 further transmitted the same to the Legal Remembrancer for approval. The approval was granted in the month of January, 2018 itself by engaging the present Advocate on record, who later on drafted the Memorandum of Appeal, but the appeal could not be filed, as the certified copy was not made ready for delivery to the appellants.
Mr. Mukherjee, learned Senior Advocate appearing for the respondents, vehemently opposes the said application by contending that there is no sufficient explanation offered by the appellants for such enormous delay and in absence thereof the Court should dismiss the said application. It is further submitted that those statements are not corroborated by any documentary materials and, therefore, the Court should not believe such statements to be true and correct.
There is no ambiguity to somewhat settled proposition of law that the length of delay is immaterial, even a delay of shorter period cannot be condoned in absence of sufficient cause, whereas the delay of longer period deserves to be condoned, if the causes are found to be sufficient. It is equally true that the Court must adopt pragmatic and lenient approach in deciding an application for condonation of delay as opposed to pedantic and strict view. The meritorious matters should not be allowed to nip in the bud on the anvil of law of limitation, but encouragement must be shown for its disposal on merit.
One of us (Harish Tandon, J.) had an occasion to consider the principles behind the determination of the application for condonation of delay and one of the foremost points, which was involved therein, is whether there should be a different parameters when an application for condonation of delay is filed by the State than the private individual. This Court noticed the judgement of the Apex Court delivered in case of Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors. reported in AIR 1987 SC 1353, where five broad principles for considering an application for condonation of delay were laid down in these words:
"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."
The Apex Court ruled out the concept of providing explanation for each day's delay and accepted the proposition that if there is a symmetry between each of the events narrated in the application, which is expected from a normal course of action, the technical rule should be guarded against.
One of us (Harish Tandon, J.) in case of Agent, Kalildaspur Project, Eastern Coalfields Limited vs. Smt. Basanti Chatterjee decided on 6th June, 2017 observed:
"The theory of each day's delay should not be used in a pedantic manner but in rational and pragmatic way so as to advance the substantial justice. The Apex Court overweighed the substantial justice against technical considerations when both the aspects are pitted against each other. No litigant would gain by resorting delay and exposed himself to a serious risk and consequences. Another striking feature discernable from the above noted decision is that the refusal to condone delay would result in throwing out the meritorious matter causing defeat to extending justice. It has not been laid down in the said report that the Court would go by the ipse dixit of the statements made in the application without venturing to find out the lapses, negligence and carelessness in taking steps in the matter. The judicial discretion should not be exercised with mathematical precision of Euclid's theorem but must be considered and judged on the facts pleaded therein and its clear nexus with the stand which a man in his ordinary prudence would consider to be reasonable and rational. The word "sufficient cause" therefore should receive a liberal and lenient construction so as to advance the substantial justice if no negligence or inaction or want of bona fide can be imputed by the appellant.
The language employed in Section 5 neither creates artificial distinction nor apparent discretion between a government and the private individuals. The Doctrine of Equality before law demands all litigations, be it State or private individuals to be subject to same treatment and administration of law in even handed manner. The State is neither a favoured child nor deserves a step motherly treatment under Section 5 of the Limitation Act."
What has been seen in the instant case that though an application for certified copy ought to have been applied on the reopening day after long vacation, but in fact was applied four days thereafter and that too beyond the statutory period provided for filing an appeal and, therefore, we cannot find any fault on the part of the appellants in deliberately inviting the limitation.
Furthermore it is a common sense that no litigant would afford to get the period of limitation provided for further remedy to expire nor can it invite any serious consequences for such lapses. The delay, which is unintentional, and there cannot be any malice or lack of bona fide in attending to the circumstances, we do not feel that the aforesaid action can be impinged for the purpose of considering the sufficiency of causes under Section 5 of the Limitation Act.
As indicated above, it is really unfortunate that the application for certified copy was kept pending for such a long time, but the moment the assessment of folio is made the same is filed immediately on the said date and in fact the appeal was filed on the same day.
We, therefore, find that the appellants have proved the sufficiency of causes and they were prevented by sufficient cause in not presenting the appeal in time.
The application, being CAN 3482 of 2018, is thus allowed.
Let the appeal and application for stay be listed on 21st January, 2019.
(SUBHASIS DASGUPTA, J.) (HARISH TANDON, J.)