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M/S C.P. Enterprises v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 2104 of 2005 [2005] RD-AH 4687 (24 October 2005)


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                       Court no. 55

Trade Tax Revision no.  2104 Of 2005.

M/S C. P. Enterprises, Badaun. ... Applicant.


The Commissioner of Trade Tax, U.P. Lucknow. ...Opp.Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') is directed against the order of Tribunal dated 06.10.2005 relating to assessment year 2002-03 under the U. P. Trade Tax Act.

Applicant filed an appeal against the assessment order before the Joint Commissioner (Appeals) II, Trade Tax, Bareilly on 06.07.2005 alongwith an application under Section 5 of Limitation Act.  The Appellate Authority rejected the application under Section 5 of Limitation Act.  Against the order of Joint Commissioner (Appeals) II, Trade Tax, Bareilly, applicant filed an appeal before the Tribunal.  Tribunal vide impugned order rejected the appeal.

Heard learned Counsel for the parties.  With the consent of both the parties, the present revision is being disposed of at the admission stage.  

The case of the applicant was that the assessment order was served upon the applicant on 14.03.2005.  Thereafter, copy of the order alongwith expenses etc. were given to the Clerk of the Advocate in the month of March, 2005.  It appears that the Clerk of the Advocate had fallen ill, therefore, Clerk kept the paper in file and had gone with the result, appeal could not be filed in time.  When the recovery proceeding was initiated and Amin approached the applicant on 05.7.2005, then applicant contacted to his Counsel and filed appeal on 06.07.2005 alongwith an application for condonation of delay and an affidavit, in this regard was filed.  Tribunal rejected the application on the ground that before the Joint Commissioner (Appeals), applicant has stated that he approached to his Counsel on 05.06.2005 while now it is stated to have contacted on 05.07.2005.  Tribunal further observed that it is not possible to believe that the delay has been caused from the Chamber of Counsel.  Tribunal accordingly refused to condone the delay.  

In my view, order of Tribunal cannot be sustained.  It is settled principle of law that while considering the application for condonation of delay, a pragmatic view should be taken and not pedantic.  In the present case, the Tribunal has taken the pedantic view.  When the applicant has stated that the copy of the order alongwith the expenses had been given to the Clerk of the Advocate and he had gone to his home due to the illness, due to which, appeal could not be filed in time and when Amin came to recover the amount on 05.7.2005, steps were taken and appeal was filed on 06.7.2005. There appears to be no reason to disbelieve the explanation given by the applicant for condonation of delay, therefore, the explanation given by the applicant for condonation of delay is accepted.  The delay in filing the appeal is condoned.

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 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 the result, revision is allowed.  Order of Tribunal dated 06.10.2005 is set aside and the matter is remanded back to the Joint Commissioner (Appeals),II Trade Tax, Bareilly to decide the appeal on merit.




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