Madras High Court
G.Nagendran vs Secretary To Government Corporation on 25 February, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.02.2016 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE C.T.SELVAM Review Application (MD).No.32 of 2016 & M.P.(MD).No.2 of 2014 in W.A.(MD).No.Sr50553 of 2010 & M.P.(MD)No.1 of 2014 in Rev.Aplc(MD).No.SR35513 of 2014 Review Application (MD).No.32 of 2016 G.Nagendran .. Applicant/Respondent/Respondent versus 1.Secretary to Government Corporation, Food and Consumer Production Department, Fort St.George, Chennai-600 009. 2.Registrar of Co-operative Societies, Chennai-600 010. 3.Joint Registrar of Co-operative Societies, K.P.Road, Nagercoil-1. 4.Deputy Registrar of Co-operative Societies, Thuckalay. . . Respondents/Petitioners/Appellants Prayer: Review Application is filed under Order 47, Rule 1, read with Section 114 of C.P.C. against the order dated 17.04.2014 in M.P.(MD).No.50553 of 2010. !For Petitioner :Mr.K.N.Thambi ^For Respondents :Mr.B.Pugalendhi Special Government Pleader :COMMON ORDER
(Order of the Court was made by S.MANIKUMAR ,J.) M.P.(MD).No.2 of 2014 is filed by the Secretary to Government, Cooperation, Food and Consumer Protection Department, Chennai, and 3 others, to condone the delay of 278 days in filing W.A.(MD).No.SR50553 of 2010. Appeal is against the order made in W.P.(MD).No.1151 of 2009, dated 17.11.2009, by which a learned single Judge has set aside the punishment imposed by the Government in G.O.(1)No.215 Cooperation Food and Consumer Protection (CLI) Department, which exercised suo motu power provided under Rule 36 of the Tamil Nadu Civil Service (Discipline and Appeal) Rules.
2. Contentions of the appellants in W.A.(MD).No.Sr50553/2010 is that the State Government may at any time suo motu review the orders passed by the subordinates, and the period of limitation is not restricted to six months.
3. M.P.(MD).No.1 of 2014 in Rev.Aplc(MD) No.SR35513 of 2014, is filed to condone the delay of 89 days in filing the review application, against the order made in M.P.(MD).No.1 of 2014 in W.A.(MD).No.SR50553/2010, dated 13.04.2014, by which, a Hon'ble Division Bench, after satisfying with the reasons assigned in the supporting affidavit of M.P.(MD).No.1 of 2014 in W.A.(MD).No.SR50553/2010, condoned the delay of 1188 days in re-presenting the writ appeal.
4. As both the above said Miscellaneous petitions filed for condonation of delay pertaining to the same subject matter, both the matters are heard together and by a common order, they are disposed of.
5. Mr.K.N.Thambi, learned counsel for the review applicant has no objection for the review application to be taken up for hearing, in the event of delay being condoned.
6. Mr.B.Pugalendhi has no objection for the delay of 89 days in filing the review, being condoned. In view of the same, delay is condoned. Registry is directed to number the review application.
7. Review application is filed against the order condoning the delay of 1188 days in re-presenting the writ appeal. The sole ground of challenge in the review application is that when notice was ordered in M.P.(MD).No.1 of 2014 in WA(MD).No.SR50553 of 2010, for condonation of 1188 days in re- presentation, the said petition has been ordered, without providing an opportunity to the review applicant to respond. Condoning delay in re- presentation is purely the discretion of the Court. Adjudication as to whether delay in representation should be condoned or not, depends upon the subsequent events, if any arising out of an order, granting or declining the relief prayed for, in the main case. In the case on hand, order passed by the Writ Court, does not create any third party rights. It is well known principle of law when there is bonafide in the cause shown for delay and there is a substantial issue to be decided in a lis between the parties, without there being any rights accrued to the parties, adjudication of the issue involved, need not be thrown out on technicalities of delay.
8. It is a matter of record that notice has been ordered to the review applicant in M.P.(MD).No.1 of 2014 in W.A.(MD).SR50553 of 2010 filed for condonation of delay in representation. Even taking it for granted that notice had already been ordered, still the Court is empowered to consider as to whether reasons assigned for condonation are satisfactory or not and whether there is nay substantive issue to be adjudicated in the appeal. In the case on hand, after going through the reasons assigned in the supporting affidavit of M.P.(MD).No.1 of 2014 in W.A.(MD).No.SR.50553 of 2010, a Hon'ble Division Bench of this Court has found that the reasons are satisfactorily explained and accordingly, condoned the delay in re-presentation. Exercise of discretion cannot be interfered with on the ground that there is an error apparent on law. At this juncture, this Court deems fit to refer the following decision;-
i) In a recent decision of the Hon'ble Supreme Court in H.Dohil Constructions Co.(P).LTD. v. Nahar Exports LTD reported in (2015) 1 SCC 680, the Apex Court considered as to how the application filed to condone the representation has to be considered, at paragraphs 19 to 21 and 24 and same are reproduced hereunder:-
?19. Having considered the respective submissions, on this question, we find that the submissions made on behalf of the appellant(s) are forceful. It is true that the delay in filing the appeals was only of 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into Registry. But when an enormous delay of nearly five years occurred in matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.
20. In the case on hand, the delay in refiling was on 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11.04.2008 as disclosed in Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 06-09-2007 and the scrutiny charges were paid on 11-4-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the respondents to have satisfactorily explained such a long delay in refiling.
When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bona fide in the respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of relief of specific performance. We also fail to see as to how Respondent 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow-up action to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dorminetibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days'delay involved in filing the appeals.
21. We express our total disinclination to countenance such a stand made on behalf of the respondents. In this respect, the claim of the appellant(s) that serious prejudice would be caused to the appellant(s) merits acceptance. In the rejoinder filed by the appellant(s) to the respondents' counter, the appellant(s) has explained as to how they had to spend a huge amount to upkeep the property by approaching the authorities of Delhi Municipal Corporation, the enormous amount spent to the tune of Rs.28,00,000 by way of house tax from the year 2004 up to this date and various other improvements made in the property during the period wherein the delay in the matter of filing of the appeals and refiling was made by the respondents. Therefore, the principle that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance.
24. When we apply those principles of Bhattacharjee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06-09-2007, the reasons which prevented the respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the Court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five yeas was involved in getting its appeals registered.
In H.Dohil's case, delay in refiling was 1727 days. The Apex Court found that there was lack of bonafides and reasons are assigned in a casual manner and not accepted.
ii) Though the decision of the Hon'ble Apex Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, has been rendered with reference to an application filed for condoning the delay. Principles culled out by the Hon'ble Apex Court are extracted hereunder:-
21. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms ?sufficient cause? should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
23. Presently to the assertions made in the application for condonation of delay and the asseverations in oppugnation of the same. It may be stated here that the Division Bench while dealing with the application for condonation of delay has also adverted to the legal tenability of the interim order in a matter of appointment and approval of a teacher, and condoned the delay. It does not require Solomon?s wisdom to perceive that the delay was colossal. In the application for condonation of delay the appellant before the High Court had stated about the circumstances in which the order came to be passed by the learned single Judge, the order in the earlier contempt petition and the second petition for contempt, the extinction of right of the respondent employee to continue in the post and thereafter proceeded to state the grounds for condonation of delay. We think it apposite to reproduce the grounds: -
?14. That from the record it appears that the order impugned was communicated to the then managing committee including the head master in question and the said fact is totally unknown to the newly elected managing committee as they have been elected on 20.9.2009 and they have been handed over charge on 21.11.09 and to the teacher in charge who has been handed over charge on 1.3.10. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the Ld. Advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over the brief from Mr. Banik, Ld. Advocate to Mr. Baidya, Ld. Advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 07.06.2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application.
15. Having got no other alternative applicant have been advised to prefer an appeal without certified copy and the leave has been prayed for and the same was allowed.
The photocopy of the receipt for application of Xerox certified copy is annexed herewith and marked with letter ?A?.
24. That the delay occasioned in presenting the said mandamus appeal has taken place due to the aforesaid reasons which was beyond the control of the applicants and was completely unintentional.?
iii) In Subramania Mudaliar v. Janardhanam, reported in 1994 (1) MLJ 152, the delay in re-presentation was six years. On the sufficiency of reasons a Hon'ble Division Bench of this Court at paras 8 and 9 held as follows:
?8. Thus in 1988 and again in 1990, the attention of the appellant as well as his counsel was specifically drawn to the fact that this appeal had not been served on the respondents. That would have certainly put on notice the appellant as well as his counsel and prompted them to represent the appeal. The failure to do so indicates a deliberate design to delay the matters. We are not convinced with the explanation given in the affidavit of the junior counsel that the records could not be traced in spite of diligent search. Even according to the affidavit, the senior clerk who had the records was living in Purasawalkam, which is also the place of the appellant himself. It is also seen from the affidavit that all the records of the appellant were with the senior clerk. That shows that both of them were moving closely and the senior clerk was in charge of the affairs of the appellant. It is but natural to infer that the appellant and the senior clerk would have been meeting very often. Particularly when the application for appointment of receiver was filed by the respondents, the appellant would have met not only the senior clerk but also the counsel. There is no explanation as to why even at that time the papers were not represented. It is stated in the affidavit that the counsel decided to reconstruct the papers and apply to the Court for necessary permission in 2993. If the version that papers could not be traced even after an extensive search is true, the decision to reconstruct the papers would have been taken in 1988 or at least in 1990. The inaction for over three years on the part of the appellant remains unexplained.
9. In the circumstances, there is no valid explanation for the inordinate delay in representation. Even if the facts stated in the affidavit are true, they prove gross negligence and callous indifference on the part of the appellant and his counsel. Even assuming that there is negligence only on the part of the counsel, it is not a valid ground for condoning such a long delay of six years in representation of the appeal. Hence, this petition for condonation of delay is dismissed.?
iv) In Y.Cusba v. K.Subbarayan, reported in 1993 TLNJ 375, there was a delay of 1191 days in representation of the appeal. The petition filed to condone the delay was dismissed which resulted in a letters patent appeal. While considering the aspect of condonation of delay, a Hon'ble Division Bench of this Court held as follows:-
?This is not a case where-in the appeal has been filed out of time. This is a case in which the appeal is filed in time. Therefore, it cannot be said that the decree under appeal has assumed finality and the right has been accrued to the respondent. The delay in representation of the papers in the instant case, cannot be put to the account of the party. Several times, it happens due to the mistake on the part of the advocate's clerk or the advocates in presenting the appeal. Therefore, the Court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in representation of the papers it can be compensated by awarding costs. Therefore, we are of the view that when the appeal has been filed in time, but there is inordinate delay in representation of the papers returned for rectification of the defects, by the appellate Court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs.?
v) In M.Khalilur Rahaman v. Rajagopal Gounder, reported in 1983 TLNJ 37, there was a delay in re-presenting the plaint. Court below after issuing notice to the defendants, went into their objections and dismissed the petition filed to condone the delay. When the said order was tested by way of revision, a learned Judge of this Court held as follows:
?Admission of the plaint is the court's job. The condonation of the delay in representation of the plaint is strictly a matter between the Court, on the one hand, and the suitor, who has filed the proceeding on the other. At that stage and for those limited purposes persons who are proposed as the opposite parties in the plaint really have no locus-standi. They cannot have any say in the matter of delay or its condonation.
Learned counsel for the petitioner conceeded that the Court has power to condone the delay even without notifying the opposite parties, but he urged that when once notice has been given to them rightly or wrongly, then a right is acquired by those parties to oppose the condonation of delay, and also take the matter further in revision or other proceeding where the Court of first instance overrules their objections and condones the delay.? In the above referred case, the learned counsel who appeared for the petitioner has also fairly conceded that the Court has power to condone the delay even without notifying the opposite parties. To urge that once notice has been given to them, rightly or wrongly, then, a right is acquired by those parties to oppose the condonation of the delay and also take the matter further in revision or other proceedings where the Court of first instance over rules their objections and condones the delay. Disagreeing with the said contention this Court held as follows:-
?This argument, I am unable to accept.?
vi) In the General Manager, Heavy Vehicles Factory, Avadi & Another v.
T.Shadrak, reported in 1978 TLNJ 332, a learned single Judge of this Court held that in so far as delay in re-presentation is concerned notice to the respondent is not necessary. After referring to the decisions in Karuveeppil Veera Vunni's Younger Brother Ahammad Kutty & Ors. v. Kottakkat Kuttu (AIR 1933 MAD 315), wherein, it was held that any time that is allowed in re- presentation is only by way of concession and therefore with reference to such concession granted by the Court, the respondent who had not even received notice in the main case, which would be issued only after the main case is admitted has no locus standi to object to the granting of the said concession.
In the above said reported case, after considering Section 148 of CPC and the inherent powers of the Court under Section 151 CPC, Hon'ble Mr.Justice I.Ismail held as follows:-
?I am of the opinion that this contention is sound. Section 148 Code of Civil Procedure is general in nature and certainly that will come into operation only where the Court fixes a time, the alteration or extension which will have the effect of affecting the rights of somebody else. But, when there is no delay in the proper presentation of the appeal papers, but there is a delay only in the re-presentation of the appeal papers, there is no question of the interest of anybody else being affected and therefore, the Court being called upon to give notice.
Even assuming the validity of the argument linking Order 41 Rule 3 with section 148 of the Code of Civil Procedure, it may also be pointed out that when papers filed before a Court are returned for rectifying certain defects, such a return is not always made under order 41 Rule 3 of the Code of Civil Procedure. Order 41 Rule 3 has only a limited application. This provisions is concerned only with the return made on the ground that the memorandum of appeal has not drawn up in the manner prescribed in Rules 1 and 2 of Order 41 and all other returns will be outside Order 41 Rule 3. Obviously those returns will be only in the exercise of the inherent powers of the Court under Section 151 and consequently the condonation of the delay in re- presentation after such return will also be in the exercise of the inherent powers of the Court under Section 151 Code of Civil Procedure and therefore Section 148 Code of Civil Procedure will not be attracted.
I may point out in this context the difference between the condonation of delay in the proper presentation of a particular proceeding pursuant to Section 5 of the Limitation Act and, the condonation of delay in the re- presentation of a particular proceeding obviously under the inherent powers of the Court under Section 151 of the Code of Civil Procedure. In the former case there is a specific provision in the statute, namely, the Limitation Act, which imposes an obligation on the Court itself suo motu to reject a proceeding if it is barred by limitation. That strictness is not available or applicable to a case of of a delay in the re-presentation of the proceeding in question. Consequently, the provisions and considerations applicable to excusing the delay under Section 5 of the Limitation Act will not apply to the question of excusing the delay in re-presenting the papers and therefore, the considerations relevant to excusing the delay with reference to petitions, disposable under the Limitation Act, will bear no analogy to those relevant to a decision of the question in the present controversy. In have proceeded on broad considerations and in particular with reference to the distinction between the delay in the presentation of a proceeding and the delay in the re-presentation of the papers with reference thereto. In view of the basis difference between the two, I am of the opinion that the considerations relevant to the former will not apply to the latter and in an application for excusing the delay in re-presenting the papers in any proceeding, whether it be a suit, a civil revision petition, a first appeal or a second appeal in any Court, notice to the respondent in the main case is not necessary and even if such notice is given to the respondent and he is heard and overruling his objection, the delay is condoned, he cannot be said to have been aggrieved in the sense of there being a judicial determination against him so as to entitle him to approach the High Court under Section 115 Code of Civil Procedure. In view of this, I hold that this petition is not maintainable and reject the same.?
9. Thus, in the light of the above discussions and decisions stated supra, we are not inclined to entertain the review application. Accordingly, the Review Application is dismissed.
10. In so far as the condonation prayer sought for in M.P.(MD).No.2 of 2014 in W.A.(MD).No.SR50553 of 2010 for condoning the delay of 278 days in filing the writ appeal is concerned, appellants, at paragraph 7 of the supporting affidavit have contended that the copy of the order made in W.P.(MD).No.1151 of 2009, dated 17.11.2009, was received on 25.01.2010, and the same was forwarded to the learned Government Pleader for his advice, about the feasibility of filing the writ appeal. Opinion was offered to file a writ appeal. During the interregnum period, delay of 278 days has caused.
Further, in the supporting affidavit, appellants have contended that as per Rule 36 of the Tamil Nadu Civil Supplies (Discipline and Appeal) Rules, suo motu proceedings can be initiated by the Government, at any time, and that limitation period of 6 months provided therefor, is not applicable to State Government. Objections for condonation, though raised by respondent, are not accepted for the reasons, that the above said issue requires to be adjudicated. Though there is a delay of 278 days in filing W.A.(MD).No.Sr50553 of 2010, considering the issue, we deem it fit to condone the delay.
11. In the light of the above discussions and decisions stated supra, delay is condoned. Office is directed to number the writ appeal, if it is in order.
To
1.Secretary to Government Corporation, Food and Consumer Production Department, Fort St.George, Chennai-600 009.
2.Registrar of Co-operative Societies, Chennai-600 010.
3.Joint Registrar of Co-operative Societies, K.P.Road, Nagercoil-1.
4.Deputy Registrar of Co-operative Societies, Thuckalay..