Madras High Court
The Director General Of Police vs G.Janarthanan on 19 September, 2019
Author: D.Krishnakumar
Bench: S.Manikumar, D.Krishnakumar
WA.SR.66247/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.A.SR.No.66247 of 2018
C.M.P.No.15759 of 2018
1.The Director General of Police
Chennai-4
2.The Additional Director General of Police
Law and Order
Chennai-600 004
3.The Deputy Inspector General of Police
Villupuram Range, Villupuram. ..Appellants/Petitioners
Vs
G.Janarthanan ..Respondent
Prayer in W.A.SR.No.66247 of 2018:- Writ Appeal filed against the
order in W.P.No.3761 of 2012 dated 24.04.2017.
Prayer in CMP.No.15759 of 2018: Petition filed to condone the delay of
457 days in filing the Writ Appeal against the order in W.P.No.3761 of
2012 dated 24.04.2017.
For appellants/Petitioners : Mr.P.S.Siva Shanmuga Sundaram,
Special Government Pleader
For respondent : Ms.Sangeetha for M/s.Bala and Daisy.
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WA.SR.66247/2018
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR,J.) WA SR.No.66247 of 2018, is filed against the order made in W.P.No.3761 of 2012 dated 24.04.2017, by which the writ Court modified the punishment imposed on the writ petitioner/respondent herein and directed the respondents to confer monetary and other benefits, if the service record of the petitioner is otherwise in order.
Reasons assigned for the delay are as follows:
"12. It is submitted that against the said order Writ Appeal ought to have been filed within 30 days from 24.04.2017. The copy of the order was received in this office only 20.06.2017. But the matter with regard to filing an appeal was under contemplation. Since, the petitioner is working Inspector of Police in Peravoorani P.S. Thanjavur District it has taken considerable time to collect his service records and to prepare the memorandum of grounds of writ appeal. Due to above said administrative reasons, there is a 457 days delay in filing appeal petition. Hence there is a delay of 457 days."
2. There is a delay of 457 days in filing the above Writ Appeal.
Hence C.M.P.No.15759 of 2018 is filed to condone the same.
3. While setting out the principles of law to be followed, in the matter of considering the applications filed for condonation, in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited http://www.judis.nic.in 2/8 WA.SR.66247/2018 and Another, reported in 2015 (1) Supreme Court Cases 680, the Hon'ble Supreme Court, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, at paragraph Nos.23 and 24, held as follows:
“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) “21.4(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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.8. (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.
21.9 (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 weight 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.
http://www.judis.nic.in 3/8 WA.SR.66247/2018 21.10. (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.
24. When we apply those principles 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 bonafides 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 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 http://www.judis.nic.in 4/8 WA.SR.66247/2018 utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.” In the above reported case, the Hon'ble Apex Court also considered the aspect of delay in refiling of the appeal and on the facts and circumstances of the case, observed that it was without disclosing the reasons, much less satisfactory reasons. In H.Dohil constructions case, it was a delay of 1727 days in refiling.
4. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case.
“14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. 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 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 period of limitation.
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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. It 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?”
5. Reverting to the case on hand, the number of days of delay in filing is 457. Reasons assigned are simpliciter that due to administrative reasons, appeal could not be filed within 30 days. Appellants have not been diligent in pursuing the appeal. Inaction is per se apparent.
Reasons assigned are not satisfactory. Having regard to the principles set out supra, we are not inclined to condone the delay of 457 days in filing the appeal papers. Hence, condone delay petition viz.
C.M.P.No.15759 of 2018 is dismissed. Consequently, WA Sr.No.96485 of 2010 is also dismissed at SR stage itself. No costs.
(S.M.K.,J.) (D.K.K.J.)
19.09.2019
nvsri
To
1.The Director General of Police
Chennai-4
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WA.SR.66247/2018
2.The Additional Director General of Police Law and Order Chennai-600 004
3.The Deputy Inspector General of Police Villupuram Range, Villupuram.
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AND D.KRISHNAKUMAR, J.
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