Madras High Court
V.Sankararaman vs The Competent Authority And on 5 January, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.R.P.No.3386 of 2022 & etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.R.P.Nos.3386, 3168, 3222, 3230, 3231, 3236, 3377, 3383
to 3385, 3552 to 3555, 3557, 3608 of 2022
C.R.P.No.3386 of 2022:
V.Sankararaman ...Petitioner
Vs.
1.The Competent Authority and
The Special District Revenue Officer (LA)
NH-7, 46-47,
Salem – Krishnagiri Districts,
Krishnagiri.
2.The Special Tahsildar (Land Acquisition)
NH-7, 46-47,
Having office at Udayapatty Bye Pass,
Salem.
3.The Project Director,
National Highways Authority of India,
D.No.221, Sri Nagar Colony,
Narasodhipatty,
Salem – 636 004. ... Respondents
Page 1 of 53
https://www.mhc.tn.gov.in/judis
C.R.P.No.3386 of 2022 & etc., batch
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, praying to set aside the Fair and Decreetal order dated 08.07.2022
made in I.A.No.1/2020 in Un-numbered Arb.OP.Sr.No------/2020 (Sr.No.
4854/2013) on the file of the Hon'ble Principal District Judge Court, Salem
and allow the said Interlocutory Application by allowing the above CRP.
For Petitioners : Mr.M.S.Krishnan
Senior Advocate
For Mr.J.Ramakrishnan
(in all 16 C.R.Ps)
For R1 & R2 : Mr.P.Harish
Government Advocate
(in all 16 C.R.Ps)
For R3 : Mr.Su.Srinivasan
Standing Counsel
[For NHAI]
(in all 16 C.R.Ps)
For R4 : No appearance
(in C.R.P.Nos.3552, 3553, 3555
& 3557 of 2022)
COMMON ORDER
The issues involved in the present Civil Revision Petitions are one and the same and hence, they are disposed of by this common order. These Civil Revision Petitions have been filed to set aside the Fair and Decreetal Orders passed by the Principal District Court, Salem and the same are tabulated below:
Page 2 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Sl. C.R.P.Nos. I.A.Nos. Un-numbered Dated No. Arb.OP.Sr.Nos.
1. CRP.No.3386 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4854 of 2013)
2. CRP.No.3168 of 2022 I.A.No.1 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4839 of 2013) I.A.No.1 of 2020
3. CRP.No.3222 of 2022 I.A.No.3 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4861 of 2013) I.A.No.1 of 2020
4. CRP.No.3230 of 2022 I.A.No.3 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4854 of 2013) I.A.No.1 of 2020
5. CRP.No.3231 of 2022 I.A.No.2 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4851 of 2013) I.A.No.1 of 2020
6. CRP.No.3236 of 2022 I.A.No.3 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4846 of 2013) I.A.No.1 of 2020
7. CRP.No.3377 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4839 of 2013)
8. CRP.No.3383 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4861 of 2013)
9. CRP.No.3384 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4846 of 2013)
10. CRP.No.3385 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4851 of 2013)
11. CRP.No.3552 of 2022 I.A.No.2 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4844 of 2013) I.A.No.3 of 2020
12. CRP.No.3553 of 2022 I.A.No.2 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4842 of 2013)
13. CRP.No.3554 of 2022 I.A.No.2 of 2021 Arb.O.P.No..../2020 01.02.2022 in (Sr.No.4852 of 2013) I.A.No.1 of 2020
14. CRP.No.3555 of 2022 I.A.No.2 of 2021 Arb.O.P.Sr.No..../2020 01.02.2022 in (Sr.No.4842 of 2013) I.A.No.2 of 2020
15. CRP.No.3557 of 2022 I.A.No.2 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 (Sr.No.4844 of 2013)
16. CRP.No.3608 of 2022 I.A.No.1 of 2020 Arb.O.P.Sr.No..../2020 08.07.2022 Page 3 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Sl. C.R.P.Nos. I.A.Nos. Un-numbered Dated No. Arb.OP.Sr.Nos.
(Sr.No.4852 of 2013)
2. The revision petitioners are the claimants. The lands belong to the revision petitioners were acquired during the year 2008 by the respondents under the provisions of National Highways Act, 1956. The first respondent/competent authority passed an award on 08.11.2012 by fixing value of the land at Rs.117.85/- per sq.ft for the acquired lands. On reference to the District Collector, Salem, the quantum of compensation was enhanced marginally and determined at Rs.495/- per sq.ft. The revision petitioners filed applications before the Principal District Court, Salem on 18.03.2013 to set aside the Arbitral Award passed by the District Collector, Salem, seeking further enhancement. The applications filed by the claimants on 18.03.2013 were returned on 30.04.2013, noting certain defects, enabling the applicants to comply with the defects. The maintainability issue was also raised.
3. While so, the Project Director, National Highways Authority of India filed an application on 06.08.2013 to set aside the award passed by the District Collector, Salem on 08.11.2012. The revision petitioners have stated Page 4 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch that the application filed by the revision petitioners on 18.03.2013 was returned on 30.04.2013 and it was represented on 28.06.2013 and again, it was returned on 08.07.2013 to rectify the defects noted down by the Principal District Court, Salem.
4. The learned Senior counsel appearing on behalf of the revision petitioners mainly contended that the delay of 2349 days in representation was neither willful nor wanton and on account of the fact that the Project Director, National Highways Authority of India filed an application, challenging the very same Award dated 08.11.2012 and the revision petitioners were pursuing the said application filed by the National Highways Authority of India and waited for the final disposal of the said application and therefore, they have not represented the case bundles in time.
5. The revision petitioners have stated that the reasons furnished by them for condoning the delay of 2349 days in representation ought to have been condoned by the District Court, since there was no willful delay. The case arising under the compulsory acquisition of valuable lands belong to the revision petitioners and therefore, all along they are pursuing the matter to get Page 5 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch just and fair compensation. Since the compensation awarded on reference in the Arbitral award is also meagre and not in commensuration with the market and potential value of the properties acquired from the revision petitioners.
6. The learned Senior counsel appearing on behalf of the revision petitioners contended that the Principal District Judge, Salem ought to have exercised his discretion in favour of the revision petitioners by condoning the delay of 2349 days (about 7 years) in representing the case papers.
7. The reasons put forth by the revision petitioners ought to have been considered and an opportunity should have been provided for them to adjudicate the issues on merits for the purpose of determining just and fair compensation.
8. The learned Senior Counsel appearing on behalf of the revision petitioners solicited the attention of this Court with reference to the affidavit filed by the revision petitioners in I.A.No.1 of 2020 in Un-numbered Ar.O.P.No....../2020 (SR.No.4854/2013) dated 08.07.2022, wherein, they have stated that the case bundles of the Arbitration Applications were Page 6 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch misplaced in the office of the learned counsel during transit and therefore, they could not able to represent the Arbitration Applications within the time limit as fixed. The misplaced bundles were located during the last week of December 2019 and thereafter, the applications were represented immediately.
9. In support of the contentions, the learned Senior counsel appearing on behalf of the revision petitioners relied on the following judgments:
(a) In the case of Ningappa Thotappa Angadi (Dead) through Lrs Vs. The Special Land Acquisition Officer and another, reported in (2020) 19 SCC 599 and the Hon'ble Supreme Court of India made an observation as follows:
“7. We find that the issue raised in this appeal is no longer res integra. This Court in Dhiraj Singh v. State of Haryana [Dhiraj Singh v. State of Haryana, (2014) 14 SCC 127 : (2015) 1 SCC (Civ) 236] held that : (SCC p. 131, paras 14-15) “14. The appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances.
15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the court. The substantive rights of the Page 7 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic.” (emphasis supplied)
11. For the reasons aforestated, the appeal is allowed in part, the impugned order passed by the High Court dated 24-11-2008 in LAO v. Yellappa [LAO v. Yellappa, 2008 SCC OnLine Kar 834] is set aside and the award passed in favour of the appellant claimant(s) by the Reference Court is restored. However, the appellant claimant(s) shall not be entitled to any interest on the enhanced compensation and statutory amount for the period of delay of 2928 days in filing the appeal. Ordered accordingly.”
(b). In the case of Dhiraj Singh (Dead) through Legal Representatives and others Vs. State of Haryana and others, reported in (2014) 14 SCC 127, the Hon'ble Supreme Court of India observed as follows:
“12. In fact, in a matter arising out of the same notification, in Civil Appeals Nos. 617-19 of 2012, this Court had rendered a judgment dated 17-1-2012 [Puran v. State of Haryana, Civil Appeal No. 617 of 2012, order dated 17-1-2012 (SC)] condoning the delay of 4644 days and enhancing the compensation to Rs 200 per square yard. A perusal of the counter-affidavit filed by the respondents makes it clear that the rate of Rs 200 per square yard fixed in Horam case [Horam v. State of Haryana, LPA No. 920 of 1994, Page 8 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch decided on 27-7-2005 (P&H)] (LPA No. 920 of 1994) has been upheld by this Court by dismissing [State of Haryana v. Horam, SLP (C) No. … of 2006 (CC No. 3472 of 2006), order dated 4-7-2006 (SC), (2014) 14 SCC 127 (F9), wherein it was directed:“Delay condoned. In view of the dismissal of SLP (C) No. 20425 of 2005 and batch on 19-10-2005, this special leave petition is dismissed.”] the special leave petition against the said judgment. A perusal of the said order makes it clear that it relied upon dismissal orders passed in various other special leave petitions whereby the aforesaid rate had been upheld.
15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self- imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic.”
(c). In the case of Northern Railway Vs. Pioneer Publicity Corporation Pvt., Ltd., reported in (2017) 11 SCC 234, the Hon'ble Supreme Court of India made an observation as follows:
“3. Mr Amarjeet Singh Chandiok, learned Senior Counsel appearing for the respondent submitted that Section 34(3) of the Act bars re-filing beyond the period stipulated therein. The said sub-section reads as follows:Page 9 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch “34. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”
(d). In the case of Kazi Moinuddin Kazi Bashiroddin and others Vs. Maharashtra Tourism Development Corporation, through its Senior Regional Manager, reported in 2022 SCC OnLine SC 1325, the Hon'ble Supreme Court of India held as follows:
“26. Before closing this matter, we are impelled to observe that the orders passed by the Courts, and particularly by this Court, are required to be understood on their pith and substance while avoiding an approach of technicalities. Moreover, when the matter relates to the payment of amount of compensation to the land losers, if at all two views are possible, the view that advances the cause of justice is always Page 10 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch to be preferred rather than the other view, which may draw its strength only from technicalities. We say no more for the present.”
10. Relying on the above judgments, the learned Senior counsel appearing on behalf of the revision petitioners contended that the delay in filing as well as for representation in land acquisition cases are to be viewed leniently, since it involves property right of the revision petitioners and the claimants being land losers are entitled for just and fair compensation. The Courts have to exercise the power of discretion in such circumstances for condoning the delay in filing or representation as the case may be. Because of the delay in representation, the right to seek enhanced compensation need not be deprived off and thus, the orders passed by the Principal District Court, Salem are liable to be set aside.
11. The learned Standing counsel appearing on behalf of the third respondent / National Highways Authority of India strenuously objected the contentions raised on behalf of the revision petitioners by stating that the delay is about 7 years and such a long delay cannot be condoned and thus, the Interlocutory Applications to condone the delay was rightly rejected by the Page 11 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Principal District Court, Salem. The revision petitioners have not stated any acceptable reason in the affidavits filed in support of the Interlocutory Applications. Long and enormous delay of 7 years, which is unexplained, cannot be condoned by the Courts and thus, the orders of the Principal District Court, Salem, is in consonance with the settled principles in the matter of condonation of delay.
12. The learned Standing counsel appearing on behalf of the third respondent/National Highways Authority of India drew the attention of this Court with reference to the paragraph Nos.13 and 14 of the affidavit filed in the Interlocutory Applications by the revision petitioners, wherein, they have not stated anything specifically and simply contended that the applications were misplaced in the office of the learned counsel appearing on behalf of the revision petitioners. Even the details regarding the misplacement or otherwise were also not given. Such a blanket, unsubstantiated reasons cannot be a ground to condone such a long delay of about 7 years in representation.
13. The learned Standing counsel appearing on behalf of the third respondent/National Highways Authority of India contended that it is a case Page 12 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch of “negligence and lapses”. Thus, the delay cannot be condoned. There is no bonafide reason furnished by the revision petitioners for the purpose of condoning such a long delay and thus, there is no infirmity in respect of the findings of the orders impugned in the present revision petitions.
14. In support of the contentions, the learned Standing counsel appearing on behalf of the third respondent/National Highways Authority of India referred the judgment of the Hon'ble Supreme Court of India in the case of Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi & Ors., in Civil Appeal No.7696 of 2021 dated 16.12.2021 and the relevant paragraphs are as under:
“6. At the outset, it is noted that by the impugned order the High Court has condoned a huge delay of 1011 days in preferring the Second Appeal by respondent Nos. 1 and 2 herein - original defendants - appellants before the High Court. While condoning the delay, the High Court has observed as under:— “In these circumstances, when there are certain questions, which require a debate in the second appeal, it is not necessary that this matter be rejected at this stage, without inviting a decision on merits. lf the delay is condoned though enormous, what happens at best is to give an opportunity to the parties to canvass their respective case. Since this question being of procedure, the attempt of the court should be to encourage a healthy discussion on merits than rejecting at threshold.Page 13 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Viewed from such perspective, accepting the reasons assigned by the petitioner, the delay in presenting this second appeal should be condoned.
Apparently, there is no wilful negligence on the part of the petitioners nor this attempt suffers from want of due diligence. It appears being a bonafide attempt on the part of the petitioners to canvass their claim particularly when the trial court had accepted their plea, which was subjected to reversal by the appellate court. However, the petitioners should compensate the respondent by means of costs for this delay. The contention of the respondent that valuable rights are accrued to her on account of inaction of the petitioners in failing to prefer the Second Appeal within time, cannot be a significant factor in the backdrop of the circumstances found in this case.
In the result, this petition is allowed condoning the delay of 1011 days in filing the second appeal subject to payment of costs of Rs. 2,000/- (Rupees Two thousand only) to the learned counsel for the respondent on or before 05.10.2021.” Thus from the aforesaid, it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.
6.1. The High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits. The High Court has also observed that there is no wilful negligence on the part of the respondents herein nor it suffers from want of due diligence. However, from the averments in the application for condonation of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein - appellants before the High Court in filing such a belated appeal.Page 14 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch 6.2. We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.
7.2. In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the 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. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.4. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each Page 15 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos. 1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein - original Page 16 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.”
15. The learned Single Judge of the High Court of Madras in Original Petition No.391 of 2017 dated 16.08.2017, considered the Original Petition filed under Section 34 (3) of the Arbitration and Conciliation Act, 1996, wherein the delay of 1045 days was not condoned and the Original Petition was dismissed with the following observations:
“9. I am not inclined to accept the submission for the reason that the right of the respondent to question delay in re-presentation is preserved to be raised as a challenge at the time of hearing of the Original Petition. This Court, vide decision in Civil Suit No.882 of 1984 and Application No.3193 of 1986 in the case of Union of India vs. M/s.Cavalier Shipping Company, Madras and another, had occasion to consider a similar situation where a delay in representation in excess of 17 years was condoned by the Master exparte. Notwithstanding the general rule that the condonation of delay in re-presentation would be a matter between the Court and the party causing such delay, Justice M.Srinivasan carved out an exception to the general rule in cases where the delay is significant and the condonation itself is seen to be mechanical and without reference to the quantum of delay. In conclusion, the learned Judge accepts the application of the defendant to dismiss the suit, setting aside the order of the Master condoning the delay. This principle would be applicable all the more in a case such as the present one Page 17 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch where there is no justification offered, let alone established, for the delay of 1045 days.
10. Learned senior counsel would also point out, with reference to an order of this Court in Indus Ind Bank Ltd. V. Joseph Rajan Fernandes and others (O.S.A.Nos.420-425 of 2011), relied upon by the respondent that the said decision was rendered in the context of condonation of delay in presentation of objections under section 34(3) and not in the context of representation. That may be so. However, the observations of the Division Bench from paragraph 4 onwards have been rendered in the context of delay in re-
presentation and are wholly applicable in and to the present case. Seen in the light of the fact that the Arbitration Act is a special enactment that provides for speedy and expeditious resolution of disputes inter se the parties, such object cannot be frustrated by unexplained and unwarranted delay in procedural matters.”
16. Relying on the above judgments, the learned Standing counsel appearing on behalf of the third respondent/National Highways Authority of India contended that the delay is enormous and about 7 years. In the event of condoning the delay, the third respondent/National Highways Authority of India would be prejudiced. Further, the compensation fixed by the competent authority was enhanced further on reference and in respect of the said reference, the third respondent filed an application, which was rejected and the Civil Revision Petition filed before the High Court was also dismissed.
Page 18 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Therefore, the compensation of Rs.495/- per sq.ft fixed is just and fair and thus, by condoning the delay, if the applications are entertained under Section 34 of the Arbitration & Conciliation Act, the interest of the Government Department will the prejudiced and more so, the acquisition was done for public projects and thus, the revision petitions are to be rejected.
17. Considering the arguments as advanced by the learned Senior counsel appearing on behalf of the revision petitioners and the learned Standing counsel appearing on behalf of the third respondent, question arises, whether the long delay of 2349 days (about 7 years) shall be condoned either by taking a lenient view or by exercising the power of discretion by the High Court or not?
18. Perusal of the entire affidavits filed in support of the Interlocutory Applications by the revision petitioners before the Principal District Court, Salem, the reasons stated are that the applications filed in the year 2013 were misplaced in the office of the learned counsel during transit and lost track of the same. The misplaced bundles were traced out only during the last week of December 2019 and thereafter, it was represented. It is not in dispute that the Page 19 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch applications were filed within the time limit prescribed. The case papers were returned by the District Court, noting certain defects and also the maintainability. The first return was made on 30.04.2013 and it was represented on 28.06.2013 and second time, it was returned on 08.07.2013, granting one month time for compliance and thereafter, it was not represented by the revision petitioners. Even knowing the fact that the third respondent/National Highways Authority of India, filed an application in O.P.No.164 of 2013, challenging the enhanced compensation of Rs.495/- per sq.ft, the revision petitioners were not chosen to represent their applications to set aside the Arbitral Award. Thus, the petitioners have the knowledge about the pendency of the application filed by the third respondent / National Highways Authority of India. When the third respondent filed application for reducing the compensation, the revision petitioners ought to have followed their applications for enhancing the compensation. However, they have not pursued the matter and slept over the applications filed by them. Even if the bundles were misplaced in the office of the learned counsel in the year 2013, the revision petitioners got ample opportunities even for reconstructing the bundles or otherwise. However, they have not taken any efforts to represent the case bundles and after a delay of 2349 days (about 7 years), they have Page 20 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch represented the applications without assigning any valid reasons. The reasons stated are blanket and such reasons are not substantiated with any acceptable documents or evidences. Paragraph Nos.13 and 14 of the Interlocutory Application filed by the revision petitioner in I.A.No.1 of 2020 in Arbitration O.P.SR.No.4854 of 2013 before the District Court, Salem, reads as under:
“13. I submit that until the month of October 2019, when the compensation was disbursed, the claimants were only focusing and following the Arbitration proceedings disgracefully initiated with falsity by the Authorities. During the interregnum couple of elder and senior land owners/claimants namely Mr.O.Annamalai and Mr.S.K.SengodaGounder, who were looking after the cases and giving instructions to the counsels on behalf of all the similarly placed claimants, both unfortunately passed away one after another on 8th February 2015 and 11th December 2016 respectively. In the meantime, the case bundles of the above Arbitration Application Ar.O.P.(S.R.No.4854 of 2013) were also misplaced in my counsel's office during transit and lost track of the same.
14. I most respectfully submit that after through search made both in the counsel's office and in the house of the above said deceased land owners, I was able to locate the returned Arbitration OP applications, documents along with the connected matters of other claimants only during the last week of December 2019. Immediately after complying with the Page 21 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch returns, the above OP is represented today.”
19. Perusal of the above reasons, this Court is unable to form an opinion that the reasons are acceptable for the purpose of condoning the huge delay of 2349 days in representing the application. This Court is unable to trace out any valid or acceptable reason for the purpose of condoning the long delay of about 7 years in representation.
20. Pertinently, the revision petitioners were aware of the applications filed by the third respondent, challenging the very same award. While so, they would have taken adequate steps to represent the case papers within the time limit or atleast within a reasonable delay. Courts are always lenient in condoning the delay in representation, if it is meagre. However, enormous delay cannot be condoned by the Courts in a mechanical or routine manner, so as to cause prejudice to the interest of the other parties and in the present cases, it is a Government Department. The law of limitation being substantive, the power of discretion to condone the delay is to be exercised judiciously. The litigants are expected to approach the Court in adherence to the law of limitation. Condonation of delay is an exception and the Courts have to exercise the power of discretion only if reasons are adequate and Page 22 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch acceptable. Unexplained delay cannot be condoned. Such unexplained delay is to be construed as an uncondonable delay.
21. The legal principles to be followed for condoning the delay is well settled and this Court considered the principles in C.M.P.Nos.8358 & 8359 of 2018 in AS.SR.No.32087 of 2018 dated 09.12.2019 and the relevant paragraphs are extracted as under:
“10. In respect of said contentions, the learned counsel appearing on behalf of the respondent cited the judgment of this Court in the case of Zulaiha Syed Mohideen Vs. D.Visalakshi Ammal & Others reported in MANU/TN/2222/2013, wherein the Court made following observations;
“5.Before going into the merits of the case, first of all, it should be stated that in a case of this nature for condonation of delay, it is well settled that length of delay is not material, but the reasons stated thereof for condonation of delay. In other words, for condonation of delay, the reasons adduced must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay. Unless proper explanation is offered, the Courts could not exercise its discretion in the proper perspective to advance substantial justice. It is also settled that when a court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not Page 23 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute. The appellate Court should also see whether the trial court has taken into consideration all the aspects of the matter, the advantage or disadvantage that may be caused to the other side while condoning the delay inasmuch as during the interregnum, the other party could have asserted a vested right. With this background, let us analyse the merits of the rival contentions urged by the counsel for both sides. 6 to 11.......
12.On behalf of the revision petitioner, several decisions were cited. The learned counsel for the respondents objected for relying on the decisions by stating that they relate to condonation of delay in filing a petition and not with respect to condonation of delay in re-presenting a petition. Such an argument of the counsel for the respondents cannot be countenanced. Each and every case depends on the facts and circumstances of that case. Further, the issue involved in this case is whether the delay in filing a petition has been properly explained and sufficient cause has been shown for the delay or not and in support of the same, the learned counsel for the revision petitioner has relied on the following decisions:-
(i) In (Kandaswamy and four others vs. Krishnamandiram Trust, Karur, by its Trustees and 33 others) 2001 (4) CTC 722 this Court took note of the fact that the conduct of the revision petitioner in keeping quite for over two years only on account of inability to mobilise other petitioner evidences would amount to gross negligence, irresponsible inactive attitude and therefore the Page 24 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch petitioner lacks bonafides. Under those circumstances, this Court refused to condone the delay of 797 days in filing a petition to set aside the exparte decree. In the above case, this Court also referred to the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents
(ii) In (Sundar Gnanaolivu rep. by his power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585, the Division Bench of this Court held that when the averments in the affidavit are untrue, lacks bona fides, then the case falls within the exception to the Rule of Liberal approach and it does not deserve the liberal approach formula in matters relating to condonation of delay. In this case also, the Division Bench of this Court followed the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents. In Para Nos. 14-A and 15, the Division Bench of this Court held thus:-
14-A. In yet another Division Bench Judgment reported in (1990) 1 LLN 457 (Tamil Nadu Mercantile Bank Limited, Tuticorin versus Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another) the principles relating to Rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17, which read as under:-Page 25 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch "14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter.
Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account, while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
"17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent (underlining is ours) Page 26 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch
15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt of hood- wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delays that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."
(iii) In the decision of this Court reported in (G. Jayaraman vs. Devarajan) 2007 (2) CTC 643, this Court held in a case where there was a delay of 553 days in filing an application to set aside the decree that discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and circumspection. It was further held that delay cannot be condoned as a matter of judicial generosity and the right accrued to the other side ought to be kept in view while considering the plea relating to affording opportunity to advance substantial justice. The facts involved in that case is identical to the facts of the case on hand. In that case, the decree holder was Page 27 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch prevented from enjoying the fruits of the decree for about 8 years because of the filing of one petition after the other by the defendants to successfully stall the execution of the decree. In that context, this Court held that liberal approach theory would cause prejudice to the plaintiff/decree holder and the discretion exercised by the trial court to condone the delay of 553 days cannot be sustained. In Para Nos. 9, 10 and 16, this Court held as follows:-
"9. Of course, it is the consistent view taken by the Supreme Court in various decisions that "sufficient cause"
appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bona fide on the part of the Applicant.
10. At the same time, the discretion must be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay.
16. As stated earlier, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was filed way back in 1998 and Revision petitioner/plaintiff has been pursuing the matter for nearly 7 to 8 years. The matter could not reach Page 28 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch finality because of one Application or other filed by the respondent/Defendant. The party claiming indulgence must prove that he is reasonably diligent in prosecuting the matter. This test for condoning the delay is not satisfied in this case. Liberal exercise of jurisdiction under Section 5 of the Act would cause prejudice to the plaintiff/Decree holder, who has been pursuing the money suit for quite a long time. In condoning the delay, there is improper exercise of discretion, and therefore, the impugned order cannot be sustained."
(iv) In (Shanmugam vs. Chokkalingam) 2009 (5) CTC 48 this Court held that the petitioner therein do not deserve indulgence inasmuch as the averments made by him in the affidavit are false and untrue. Under those circumstances, this Court refused to condone the delay of 332 days in filing a petition to set aside the exparte decree.
(v) In (Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another) 2010 AIR SCW 1788 the Honourable Supreme Court rejected an application for condonation of delay of 4 years in filing an application to set aside an exparte decree on the ground that the explanation offered for condonation of delay is found to be not satisfied.
(vi) In the decision of this Court reported in (K.M. Balasubramaniam vs. C. Loganathan and another) 2011 (2) MWN (Civil) 741 this Court had an occasion to consider a case for condonation of delay of 1581 days in re-presenting an application to set aside the exparte decree. In that case, the suit was filed for recovery of money which was decreed exparte and Page 29 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch the Execution Petition filed by the decree holder was also ordered exparte. Thereafter, the decree holder obtained sale certificate also and at the time of taking delivery of the property, the petitioner therein filed the application to condone the delay of 1581 days in setting aside the exparte decree. In that case also, a Petition under Section 47 of the CPC was filed stating that the decree is not executable. In the above facts and circumstances, this Court held that the delay offered for condonation of delay is not proper and acceptable. In Para Nos. 18 and 19, it was held as follows:-
18. It is not in dispute that the suit was filed based on a pro-note dated 01.08.1999 and the ex parte decree was passed on 08.09.2004, nearly 7 years back. It is an admitted fact that the Petitioner appeared in the suit as well as in the earlier E.P. No. 87 of 2005 through Counsel, however, the alleged petition filed under Order 9, Rule 13, C.P.C. to set aside the ex parte decree was not represented for more than four years and four months.
Though arrest was ordered in the earlier E.P., however, as the petitioner evaded service, the E.P. was closed, then the present Execution Petition in E.P. No. 292 of 2006 was filed against the property belongs to the petitioner. Notice was served properly on the petitioner/judgment debtor and after proclamation of sale, property was sold in public auction. The successful bidder, a third party to the Suit paid the entire amount. As the sale was confirmed and Sale certificate was also issued, the amount deposited by the auction purchaser was withdrawn by the decree- holder by filing a petition before the Court below and full satisfaction was recorded. At this stage, the petitioner is not Page 30 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch entitled to seek an order to condone the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the exparte. It cannot be disputed that the length of delay is not a matter for deciding the petition filed under Section 5 of Limitation Act and rendering substantial justice is the paramount consideration.
19. In the instant case, it is clear that the Petitioner/Judgment Debtor has deliberately adopted delay tactics at various stages. Having appeared through Counsel in the earlier Execution Petition in E.P. No. 87 of 2005, evaded arrest and has not challenged various orders passed in the Execution Petitions has casually filed the Application before the court below to condone the delay in representing an Application filed under Order 9, Rule 13, C.P.C. and also filed a Petition under Section 47, C.P.C. which would show that it is an abuse of process of law, as argued by the learned counsel for the Respondents. On the aforesaid circumstances, I could find no merit in favour of the petitioner to allow the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the ex parte decree. As found by the Court below, the inordinate delay has not been satisfactorily explained by the Petitioner herein. While deciding the Petition, this Court has to consider the substantial justice. I am of the view that allowing the petition would render only injustice to the Second respondent/auction purchaser, who was impleaded by the order of this Court in this Revision and the first respondent/decree holder, hence, to meed the ends of justice, the Civil Revision Petition is liable to be dismissed, as an abuse of process of law by the Page 31 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Petitioner herein."
(vii) In (Postmaster General and others vs. Living Media India Limited and another) (2012) 3 SCC 563, the Honourable Supreme Court, while dismissing the application for condonation of delay of 427 days in filing the Special Leave Petition, held condonation of delay is not an exception and it should not be used as an anticipated benefit for the government departments. In that case, the Honourable Supreme Court held that unless the Department has reasonable and acceptable reason for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process cannot be accepted. In Para Nos. 25, 26, 27, 28, and 29, the Honourable Supreme Court dealt with the scope of 'sufficient cause' and held as follows:-
25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster vs. Living Media Limited as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010 i.e., after a Page 32 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch period of nearly four months.
26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Deponent nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned.
Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
27. It is not in dispute that the person (s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view Page 33 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
11.In the case of Sundar Gnanaolivu Vs. Rajendran Gnanavolivu reported in MANU/TN/2123/2003, the Division Bench made following observations;
“8. In the judgment reported in MANU/SC/0573/1998 :
1998 (2) CTC 533 (N. Balakrishnan versus M. Krishnamurthy), the position has been set out as under in para 14:
14. It must be remembered that in every case of delay there can be some lapse 'on the part of the litigant concerned.Page 34 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch 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 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....
(Underlining is ours)
9. In the Judgment reported in MANU/SC/0398/2001 : 2001(6) SCC 176 M.K. Prasad versus P. Arumugam), it has been held as under in para 9.
9.Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay....
(Underlining is ours)
10.In a recent Judgment of the Honourable Supreme Court reported in MANU/SC/0135/2002 : 2002(3) SCC 195 = 2002-3- Page 35 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch L.W.417 (Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others), the position has been succinctly set out in para 12 which reads as under:
12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-
like manner....
(Underlining is ours)
11. In the Division Bench Judgment of our High Court, in the Judgment reported in MANU/TN/0252/2000 : 2000 (3) CTC 727 = 2000 3 L.W. 938 (C. Subraniam versus Tamil Nadu Housing Board rep. by its Chairman And Managing Director), the position has been stated as under in para 31:
31. To turn up the legal position, (1) the work "sufficient cause"
should receive liberal construction to do substantial justice; (2) what is "sufficient cause" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion' (5) 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 in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but Page 36 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the' discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9). If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether.
13. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17 which read as under:
14. ...If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts Page 37 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
17. ...Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?
(Underlining is ours)
14. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood- wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who Page 38 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favorably ordered.
The Division Bench in the above said case made an observation that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is a lack of bonafides or attempt to hoodwink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is observed that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have Damocles' sword hanging over his had indefinitely for a period to be determined at the whims and fancies of the opponent.
12. Thus, the Courts have taken a clear view that the intention of the parties in filing appeal belatedly after causing prejudice to Page 39 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch the interest of the other parties, then also the delay cannot be condoned by exercising the power of discretion. Therefore all these aspects are to be considered. Mechanical or routine approach is impermissible, may be permissible in respect of the delay of short span and not otherwise.
13. In the case of Lanka Venkateswarlu (D) by L.R.s Vs. State of A.P. & others reported in MANU/SC/0153/2011, the Hon’ble Supreme Court made an observation as follows;
“20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
21 to 25.........
26.We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are Page 40 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."
14. In the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe.Eng.Jalgaon Medium Project & others reported in MANU/SC/4694/2004, the Hon’ble Supreme Court held as follows:
“15. In Ajit Singh Thakur Singh and anr. vs. State of Gujarat [ (1981) 1 SCC 495 ] this court observed :
"It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause."Page 41 of 53
https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch (Emphasis supplied) This judgment squarely applies to the facts in hand.
17. Shri Mohta, learned senior counsel relying on the decision of this court in N. Balakrishnan vs. M.Krishnamurthy [(1998) 7 SCC 123] submitted that length of delay is no matter, acceptability of explanation is the only criterion. It was submitted that if the explanation offered does not smack of mala fides or it is not put forth as part of dilatory tactics the court must show utmost consideration to the suitor. The very said decision upon which reliance has been placed holds that the law of limitation fixes a life span for every legal remedy for the redress of the legal injury suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. The decision does not lay down that a lethargic litigant can leisurely choose his own time in preferring appeal or application as the case may be. On the other hand, in the said judgment it is said that court should not forget the opposite party altogether. It is observed:
"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."
18. In Ramlal and others vs. Rewa Coalfields Ltd. [ AIR 1962 SC 361], this court held that: "in construing Section 5 of the Page 42 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties 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 of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. `It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration." On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour."
15. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon’ble Apex Court of India made an observation as follows:
Page 43 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch “15. 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 Page 44 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch 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.
16. 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 Page 45 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch 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."
It is very important to consider the judgement of the Hon’ble Supreme Court in the case of Esha Bhattacharjee, wherein the Hon'ble Apex Court laid down certain principles which were culled out particularly and those principles are the guiding principles for the purpose of deciding the petitions filed to condone the delay. The above principles, cited supra reveals that the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed totally to unfettered free play.
16. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed in Page 46 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch jettison the substantial law of limitation. The law of limitation is substantial and therefore the principles laid down is to be scrupulously followed while condoning the delay under the law of limitation. The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. In the event of prolongation or protraction of the litigation, undoubtedly and for an unspecified period when the specific law of limitation has got a specific purpose and object, then the power of discretion is to be exercised cautiously. Power of discretion cannot be exercised in the absence of any valid reason. In other words, powers can be exercised for the purpose of passing orders only by recording reasons which must be candid and convincing and must be passed on certain sound legal principles. Therefore, recording of reasons for exercising discretionary powers is one of the elementary principles of law. In the event of exercising discretionary powers without recording reasons, undoubtedly the same would cause not only prejudice and will set a bad principle and therefore, the Courts must be cautious while exercising power of discretion more specifically in such matters where the law of Limitation is substantial.”
22. As far as the present revision petitions are concerned, the reasons stated for condoning the long delay of 2349 days in representation is inadequate, insufficient and unacceptable and thus, this Court do not find any infirmity in respect of the findings made by the Principal District Court, Salem in its orders, which are impugned.
Page 47 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch
23. Regarding the judgments relied on by the revision petitioners, the Hon'ble Supreme Court of India has considered the circumstances, where, certain claimants filed petitions for enhancement, which were considered and ordered by the Courts and other persons, who were not aware of such petitions, were permitted to file petitions after delay. Thus, in those cases, mostly, petitions were filed along with the condone delay petition, since they were not aware of the enhanced compensation or otherwise granted to other similarly persons. Even otherwise also, the Hon'ble Supreme Court of India considered some cases based on facts and circumstances. Regarding condonation of delay, each case is to be considered with reference to the reasons furnished for condoning long delay. In the absence of any convincing reasons, the Court cannot condone the delay, which would cause prejudice to either of the parties.
24. The present case on hand is a classic case, where there is a “negligence and lapses” on the part of the revision petitioners in pursuing the applications filed by them in the year 2013. Negligence or lapses cannot be a ground to condone the delay of 2349 days (about 7 years) in representing the Page 48 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch case papers. Since it is a case of negligence, the revision petitioners alone are responsible for their own lapses or default and at this length of time, if such a long delay of 7 years is condoned, the same would cause prejudice to the public interest, since the compensation fixed by the competent authority was already enhanced as Rs.495/- per sq.ft and the applications filed by the third respondent/National Highways Authority of India to reduce the compensation was also dismissed. Therefore, the judgments relied on by the revision petitioners are to be confined with reference to the facts of those cases and the same are of no avail to the revision petitioners in respect of the facts and circumstances. In the present cases, wherein, the revision petitioners have not furnished any acceptable reason for the purpose of condoning the long delay of 2349 days (about 7 years) in representation.
25. The Hon'ble Supreme Court of India in the case of Majji Sannemma (cited supra), held that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. In case a party has acted with negligence, lack of bona Page 49 of 53 https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. Each application for condonation of delay has to be decided within the framework laid down by this Court. If courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
26. In the present cases, the very purpose and object of the Arbitration and Conciliation Act to ensure that the Arbitral proceedings are disposed of within a reasonable period of time. Though no time limit has been prescribed in respect of the applications filed under Section 34 of the Arbitration and Conciliation Act, the whole object of the Act is to be considered, while considering the condone delay applications and in the present case, since the delay is 2349 days (about 7 years) in representation, there is no justification for condoning such a long delay. Thus, the very purpose and object of the Arbitral proceedings or applications under Section 34 of the Arbitration and Conciliation Act are to be considered with reference to its purpose and object.
Page 50 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch
27. In view of the facts and circumstances, this Court do not find any perversity or infirmity in respect of the Fair and Decreetal Orders passed by the Principal District Court, Salem.
28. Accordingly, all the Civil Revision Petitions stand dismissed. No costs.
05.01.2023 kak/Jeni Index : Yes Speaking order:Yes Neutral Citation:Yes To
1.The Judge, Principal District Court, Salem.
2.The Competent Authority and The Special District Revenue Officer (LA) NH-7, 46-47, Salem – Krishnagiri Districts, Krishnagiri.
3.The Special Tahsildar (Land Acquisition) NH-7, 46-47, Having office at Udayapatty Bye Pass, Salem.
Page 51 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch
4.The Project Director, National Highways Authority of India, D.No.221, Sri Nagar Colony, Narasodhipatty, Salem – 636 004.
Page 52 of 53https://www.mhc.tn.gov.in/judis C.R.P.No.3386 of 2022 & etc., batch S.M.SUBRAMANIAM, J.
kak/Jeni C.R.P.No.3386 of 2022 & etc., batch 05.01.2023 Page 53 of 53 https://www.mhc.tn.gov.in/judis