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STATE OF U.P. versus RAKESH KUMAR AND ANOTHER

High Court of Judicature at Allahabad

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State Of U.P. v. Rakesh Kumar And Another - WRIT - C No. 9646 of 2004 [2006] RD-AH 8545 (27 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 25

Civil Misc. Writ Petition No. 9646 of 2004.

State of U. P. through Collector, Banda. ...Petitioner.

Versus

Rakesh Kumar, Banda and another. ... Respondents.

Hon'ble Rajes Kumar, J.

Present writ petition is directed against the order dated 27.7.2002 passed by the Additional District Judge, Banda, by which, the application for condonation of delay under Section 5 of Limitation Act has been rejected.

The brief facts giving rise to the present writ petition are that the District Magistrate, Banda has received the Recovery Certificate from the office of the Land Acquisition Officer against one Sri Ashok Kumar Nigam who has alleged to have received excess amount from the Land Acquisition Officer's office and in pursuance thereof, the property of Shri Ashok Kumar Nigam has been attached  Sri Rakesh Kumar son of Sri Ram Saran Srivastava filed an Original Suit no. 61 of 1985 Rakesh Kumar Versus State of U. P. and others in the Court of Civil Judge, (Sr. Div.), Banda with the prayer that a decree of Rs.1,28,003.50 in favour of plaintiff/respondent no.1 be made with 15% interest as compensation till the realization of the whole amount.  Suit was filed on the allegations that the shop of Rakesh Kumar was adjacent to Shri Ashok Kumar Nigam and while attaching the properties of Ashok Kumar Nigam, the properties of plaintiff was also attached and removed.  The Civil Judge (Sr. Div.), Banda has decreed the Suit vide judgment dated 20.2.2000 against the petitioner and also ordered to pay Rs.100/- per day as compensation commencing from 12.11.1990 alongwith interest @ 12%.  The decree of the above Suit was prepared.  It appears that a execution proceeding has been initiated and the District Magistrate passed an order of attachment on 24.01.2001.  Against the said order, an appeal was filed alongwith application under Section 5 of Limitation Act for condonation of delay.  Reason for delay was stated that after receipt of the copy of the decree dated 26.2.2000, copy of order and decree were sent by the District Government Advocate vide letter no. 583 on 17.3.2000 to District Magistrate expressing his opinion to file appeal.  The said letter was received in the office of the District Magistrate, but there was no material to suggest that the letter was sent for obtaining permission from the Government.  When the attachment order was passed by the District Magistrate on 20.4.2001, opinion was sought by the District Magistrate from the District Government Advocate on 22.4.2001.   On 23.4.2001, the District Government Advocate sent a letter to the District Magistrate, Banda. Thereafter, the District Magistrate, Banda has sent the letter on the same day i. e. on 23.4.2001 vide letter no. 8 dated 23.4.2001 to the Government for according permission to file appeal which has been received on 27.4.2001.  The approval has been accorded to the District Government Advocate on 28.4.2001 at 4.30 P. M.  The District Government Advocate wrote a letter for the expenses etc.  29th was the Sunday.  On 30.4.2001 on receipt of the expenses, appeal was filed.  The Additional District Judge, Banda rejected the application mainly on the ground that the appeal has been filed against the judgment dated 10.2.2000 while the permission was sought to file the appeal against the order dated 10.2.2001 while there was no such judgment.  Petitioner claimed that by typographical error instead of 10.2.2000 dated 10.2.2001 has been transcribed, amendment in this regard was sought.

Heard learned Counsel for the parties.

In my opinion, the Additional District Judge, Banda has taken a pedantic view while considering the application for condonation of delay.  It is true that there was some latches on the part of the petitioner in filing the appeal and taking the steps in time, but in my view by adopting liberal view and on the imposing of costs against the petitioner, the application for condonation of delay is liable to be allowed.

The law of limitation 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, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

In the case of Collector, Land Acquisition Vs. Mst. Kati Ji and others, reported in 1987 (13) ALR, 306(SC), Hon'ble Supreme Court held as follows:

"The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice - that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy.

And such a liberal approach is adopted on principle as it is realized that :

1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late

2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would be decided on merit after hearing the parties.

3."Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hous's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay.

5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6. It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

In N. Balakrishnan Vs. M.Krishnamurthy, reported in (1998) 7 SCC, 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."

In Smt.Prabha Vs. Ram Prakash Kalra, reported in 1987 (Suppl) SCC, 338, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.

In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil and others, reported in 2001 (44) ALR, 577 (SC), the Apex Court made a distinction in delay and inordinate delay observing as under :

"In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case calls for a more cautious approach...."

In New India Insurance Co. Ltd., Vs. Smt.Shanti Misra, reported in 1976, AIR SC, 237, Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction.

In Briji Inder Singh Vs. Kanshi Ram, reported in 1917, AIR, PC, 156, it was observed that true guide for a Court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala devi Jain Vs. Kuntal Kumari, reported in 1969, AIR, SC, 575, the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In O.P.Kathpalia Vs. Lakhmir Singh, reported in 1984, AIR, SC, 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In State of Haryana Vs. Chandramani, reported in AIR 1996 SC, 1623, Hon'ble Supreme Court considered large number of its earlier judgments including Binor Bihari Singh Vs. Union of India, reported in (1993) 1 SCC, 572, M/s Shakambari and Co. Vs. Union of India, reported in (1993) Supp (1) SCC, 487, Warlu Vs. Gangotribai, reported in (1995) Supp (1) SCC, 37, Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,  reported in AIR, 1962, SC, 361, Concord of India Insurance Co. Ltd., Vs. Nirmala Devi, reported in AIR, 1979 SC, 1666, Lala Mata Din Vs. A. Narayanan, reported in AIR, 1970, SC, 1953, and held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner."

In State of Haryana Vs. Chandramani (Supra), the Apex Court held as follows:-

"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court- be it by private party or the State-are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits.  It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered is an applicant, praying for condonation of delay.  It is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing on the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community.  It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay- intentional or otherwise- is a routine.  Considerable delay of procedural red tape in the process of their making decision is a common feature.  Therefore, certain amount of latitude is not impermissible.  If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest.  The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay.  The factors which are peculiar to and characteristic of the functioning of the Government condition would be cognizant to and require adoption of pragmatic approach in justice-oriented process.  The Court should decide the matters on merits unless the case is hopelessly without merit.  No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause.  The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorize the officers take a decision or give appropriate permission for settlement.  In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any, Equally, the State cannot be put on the same footing as an individual.  The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.  Considered from the perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."

In the result, writ petition is allowed with costs of Rs.10,000/- (Rs. Ten Thousand).  In case, if the petitioner deposits Rs.10,000/- (Rs. Ten Thousand) within one month from today, the application for condonation of delay stands allowed.  The Appellate Authority is directed to decide the appeal on merit preferably within a period of three months.  Both the parties are directed to appear before the Appellate Authority on 20.5.2006 alongwith Certified copy of the order.   The Appellate Authority is further directed to either hear the appeal on the same day or may fix any other date for final disposal of the appeal.  It is made clear that the notice need not be issued to the parties.  

Dt:27.04.2006.

MZ/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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