Gram Panchayat, Kandhi vs Heirs Of Rambhai Khimabhai Harijan

Gujarat High Court

Gram Panchayat, Kandhi vs Heirs Of Rambhai Khimabhai Harijan on 7 January, 2025

                                                                                                              NEUTRAL CITATION




                             C/SCA/64/2025                                  JUDGMENT DATED: 07/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 64 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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                                    Approved for Reporting                  Yes           No

                       ==========================================================
                                                GRAM PANCHAYAT, KANDHI
                                                         Versus
                                       HEIRS OF RAMBHAI KHIMABHAI HARIJAN & ORS.
                       ==========================================================
                       Appearance:
                       MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                        Date : 07/01/2025

                                                        ORAL JUDGMENT

1. The present petition is filed under Article 227 of the Constitution of India by Gram Panchayat, Kandhi through its Sarpanch, seeking following reliefs:-

"A. A writ of certiorari or any other writ, order or direction may kindly be issued to quash and set aside the judgement and order dated 20-09-2024 passed by the Court of 2nd Additional District Judge, Gir-

NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined Somnath at Una in Miscellaneous Civil Application No. 31 of 2023, at Annexure - 'D' by allowing the said application, preferred by the Petitioner, as prayed for, in the interest of justice.

B. Pending hearing and final disposal of the present Special Civil Application, the Respondents may kindly be directed to maintain status quo in respect of the lands in question, in the interest of justice.

C. Any other and/or further reliefs that may be deemed necessary and expedient in the interest of justice may kindly be granted."

2. The parties will be referred to as per the original position in Regular Civil Suit No. 150 of 1994 in question.

3. FACTS OF THE CASE:-

3.1. The petitioner happens to be the plaintiff, and the respondents are the defendants of Regular Civil Suit No. 150 of 1994 filed before the Joint Civil Judge (S.D.), Una. The suit appears to Page 2 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined have been filed seeking a permanent injunction against the defendants. After hearing the parties and considering the evidence on record, the Trial Court, vide its judgment and decree dated 4.9.2000, dismissed the suit.

3.2. The dismissal of the suit was challenged by the plaintiff by way of a Regular Civil Appeal before the District Court under Section 96 read with Order 41 of the Code of Civil Procedure, 1908 (for the sake of brevity, hereinafter referred to as 'the Code'). As there was a delay of 8285 days in filing such appeal, the plaintiff - petitioner had filed Civil Miscellaneous Application No. 31 of 2023 in the appeal.

3.3. The defendants appear to have objected to such a long, inordinate, and unexplained delay on the part of the plaintiff in filing the First Appeal by Page 3 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined filing their reply.

3.4. After hearing the parties and considering the averments made in the application, the 2nd Additional District Judge, Gir-Somnath at Una, rejected the delay application, vide its impugned order dated 20.9.2024.

3.5. Being aggrieved and dissatisfied with the rejection of the delay application of the plaintiff -

petitioner by the 2nd Additional District Judge, Gir-Somnath at Una, vide its impugned order dated 20.9.2024, passed in Civil Miscellaneous Application No. 31 of 2023, the present petition has been filed.

4. CONTENTIONS OF THE PETITIONER:-

4.1. Learned Advocate Mr. Vishal C. Mehta for the petitioner would submit that the learned District Court, without appreciating the averments made in the Page 4 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined application and without appreciating the law laid down by the Hon'ble Apex Court of India while adjudicating the delay application, has erroneously rejected the application of the plaintiff in filing its First Appeal.

4.2. He would further submit that the non-intimation of the impugned judgment and decree passed by the Trial Court by the advocate engaged by the plaintiff resulted in the delay in filing the Regular Appeal.

4.3. He would further submit that once the petitioner came to know about the passing of decree in its suit when received summons in a suit filed by defendant in year 2001, the advocate engaged by the applicant has ill-advised that petitioner is not requires to challenge the judgement and decree passed by the Trial Court as a countersuit came to be filed by the defendants, being Regular Civil Suit No. 98 of 2021 against the plaintiff, which was pending at the relevant point of Page 5 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined time.

4.4. He would further submit that there is no malafide, or dilatory tactic used by the office of the plaintiff, and there is no ill-intention on the part of the plaintiff to file the appeal after a delay of 8285 days. He would further submits that there is no negligence and or gross negligence on the part of the petitioner in filing the appeal after this much delay.

4.5. To buttress his argument, he relied upon the decision rendered in the case of Dodidya Hajabhai Naran v. Shri Jilla Panchayat Junagadh Through District Development Officer, 2023 (0) AIJEL-HC 247283. Para Nos. 11 and 12 are reproduced as under:

"11. In State of Kerala v. E.K. Kuriyipe it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath it was held that the Page 6 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.

12. In O.P.Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be aground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for 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. This Court reiterated that the expression 'every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense, pragmatic manner. When substantial justice and technical considerations are pitted against Page 7 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an everhanded manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was accordingly condoned."

4.6. He also relied upon the decision of this Court rendered in the case of State of Gujarat v.

Arunkumar Sukhdevbhai Trivedi passed in Second Appeal No. 3619 of 2020. Paras 14, 15, Page 8 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined and 16 of the same are as under:

"14. It is to be remembered that in every case of delay some lapse on the part of the litigant concerned can be attributed. Albeit alone it is not enough to turn down the plea and to shut the door of litigant forever. The explanation if does not smack of malafide or it is not put forth as a dilatory tactics, the Court must show consideration to the aspect. Opposite position can also be invented while the Court has reasonable ground to believe that delay was caused by the party deliberately to gain time, then the Court should lean against acceptance of expression. We may also refer to the observations of the Hon'ble Supreme Court in case of Maniben Devraj Shah (supra) as under :

"24. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed Page 9 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

15. What could be understood that for explanation of the sufficient cause if Court finds that there has been no negligence on the part of the applicant and the explanation shows that the delay does not smack of malafide then the Court may condone the delay. On the other hand, if the explanation is found to be concocted or negligent in prosecuting his case, the Court can decline to condone the delay. If State is litigant, seeking condonation of delay though law of equity demands that State should be put a par with other litigant, some latitude should be given to the State. Recently, the Supreme Court has thoroughly discussed this issue in case of Sheo Raj Singh (Deceased) (supra), after referring various judgments on the subject matter including its judgment in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others - (2013) 12 SCC 649 as well as judgment in the case of Mst. Katiji (supra), in para 29, 30, 31 and 37, Hon'ble Apex Court has observed as under:

"29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause Page 10 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an 'explanation' and an 'excuse'. An 'explanation' is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see 'explanation' and 'excuse' as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. An 'excuse' is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an 'excuse' would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication.

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30. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly well-settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa12, which in turn relied on the (2003) 10 SCC 390 decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha13 where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".

31. The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decisions in Mst. Katiji (supra), Ramegowda (supra), Chandra Mani (supra), K.V. Ayisumma (supra) and Lipok AO (supra) were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. v. Bherulal14 is one such decision apart from University of Delhi (supra)] which have not accepted governmental lethargy, tardiness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of Page 12 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above. We find that the High Court in the present case assigned the following reasons in support of its order:

a. The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself, would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice.

b. The expression sufficient cause is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail.

c. It is upon the courts to consider the sufficiency of cause shown for the delay, and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further, the merits of a claim were also to be considered when deciding such applications for condonation of delay.

d. Further, a distinction should be drawn between inordinate unexplained delay and explained delay, where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and the government counsel on record before the Reference Court. e. The officer responsible for the negligence would be liable to suffer and not public Page 13 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.

*** *** ***

37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference.

As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

16. Given the reasons it appears that opponent has failed to point out any malafide or negligence on the part of the applicant in not filing the second appeal within time. The negligence of GP offices or their officers, which is mainly argued by learned advocate Mr.Solanki, may suffer the responsible officer but no public interest which the State is espousing through. The pragmatic view is required to be taken in the matter and in background of this aspect the explanation of delay of 703 days is to be seen and considered. They are not found to be colossal delay compared to the public interest involved in the Page 14 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined matter. In facts and circumstances of the case, the judgments relied upon by the learned advocate Mr.Solanki would not avail any benefit to his case.

4.7. Mr. Mehta ld. advocate would concluded his argument with the request that, considering the fact that the petitioner is a Gram Panchayat being a Public Authority, it requires legal advice from its panel advocates/advocate engaged for prosecuting any legal remedy, and ordinarily, the officer concerned would follow the legal advice given to them. So, he would request that, on suitable conditions/cost, if this Court deems it fit to impose upon the plaintiff, the delay may be condoned.

4.8. No other and further submissions being made by learned advocate of the petitioner.

5. ANALYSIS / REASONING 5.1 I have gone through the averments made in the Page 15 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined petition as well as the documents annexed and also perused the impugned delay application as well as the impugned order passed thereon by the District Court concerned which is under challenged.

5.2. It appears from the documents available with the petition that the judgment and decree challenged in the appeal were passed on 4.9.2000. Its copy, which is placed along with the petition (page 19), does suggest that the certified copy of such judgment was applied on 11.9.2000 and was delivered on 12.9.2000. The plaintiff, in its delay application, averred that initially, the learned advocate engaged by the plaintiff had not informed about the passing of such judgment and decree, but the same came to the notice of the plaintiff when it received notice of Regular Civil Suit No. 98 of 2001 filed by the defendant. Thereafter, it has been further averred that, because of the ill advice of the advocate, no appeal was filed, though Page 16 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined the plaintiff was made aware of the passing of such judgment and decree in question. According to the plaintiff, it followed the advice of the advocate, who opined that there was no need to file any appeal against such judgment and decree as the suit of the defendant was pending for adjudication. As such, except the bare averments made in the application about ill advice, nothing has been placed on record about any communication exchanged between the advocate and the plaintiff regarding receiving such ill advice. Be that as it may, this cannot be considered a ground for condonation of delay, as much as any advice received by the litigant who is an authority at least to understand the sensitivity of the nature of proceedings, which was initiated at its instance by filing a suit that culminated in its dismissal. When the advocate engaged by the plaintiff initially did not inform about the passing of such judgment and decree, and the very advocate was engaged by the Page 17 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined petitioner/plaintiff in the subsequent suit filed by the defendant, it speaks volumes about the conduct of the official of the plaintiff regarding conducting legal matters in the Court of law.

5.3. Though it is stated in para 2 of the application that the certified copy of the judgment and decree passed by the Trial Court was applied for on 19.1.2023 and the same was delivered to the plaintiff on 21.1.2023, this is factually incorrect because, as stated hereinabove, the copy annexed with the petition (page 19) clearly suggests that the certified copy was applied for on 11.9.2000 and delivered on 12.9.2000. Thus, the statement made by the applicant-plaintiff in its delay application is factually incorrect and misleading.

5.4. The learned advocate Mr. Mehta, appearing for the petitioner, has relied upon two decisions of this Page 18 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined Court, whereby he would emphasize that a liberal approach should be taken by the Court when there is no negligence on the part of the applicant and there is no malafide attributed or alleged by the other side upon the authorities. Then, to do substantial justice between the parties and without taking any hyper-

technical approach in the matter, the delay requires to be condoned by the Court.

5.5. I have gone through both these decisions passed by the learned Single Judge of this Court, referring to the case law of the Hon'ble Apex Court of India on the aspect of condonation of delay viz-a-viz sufficient cause. There is no cavil that, wherever a delay application is filed wherein a sufficient cause is made out and no negligence/malafide/dilatory tactics are used by the applicant, ordinarily the approach of the Court would be deemed towards granting such an application, thereby allowing the matter to be decided Page 19 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined on merits. It is required to be noted here that, in Dodidya Hajabhai Naran (supra), the challenge in the petition was against granting condonation of delay by the appellate Court, and there was a delay of 240 days in filing the appeal. After considering the averments made in the application, the discretion used by the appellate Court in favor of the applicant, and the absence of negligence/malafide on the part of the appellants/applicants of that case, this Court found that no interference was required while exercising its power under Article 227 of the Constitution of India.

Once the trial Court or appellate Court exercises discretion while condoning the delay, this Court, in its jurisdiction under Article 227 of the Constitution of India, ordinarily should not interfere with such discretion used by the Court concerned unless such discretion is used arbitrarily or manifestly contrary to the records germane to the delay application. [see Sheo Raj Singh (Deceased) through LRS & ORS V/S Page 20 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined Union of INDIA & ANR reported in 2023 (10) SCC 531] 5.6. In the case of Arunkumar Sukhdevbhai Trivedi (supra), wherein there was a delay of 703 days at the instance of the State in filing the appeal before this Court, it was observed by this Court that there was no malafide or negligence on the part of the applicant in not filing the second appeal, and the delay was condoned. But the facts on hand speaks volume about sheer negligence on the part of petitioner being public authority in pursuing legal remedy available to the litigant than ratio of the said decision would not apply in this case.

5.7. Both these judgments would not be applicable to the facts of the present case inasmuch as the District Court concerned has not exercised its discretion in favor of the applicant, rightly so, because neither any sufficient cause was made out by the plaintiff, nor can Page 21 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined such an approach on the part of the District Court be said to be arbitrary in nature, which requires interference by this Court in its jurisdiction under Article 227 of the Constitution of India.

5.8. True, the length of delay is not material while considering any delay application, but when there is gross delay, like in the present case on hand, i.e., 8285 days of delay in filing the appeal (almost 22 years plus), there is some relevance to length of such gross delay. After going through the documents annexed to the petition, I am of the opinion that it is a case of gross negligence on the part of the plaintiff, being a public authority, in dealing with the legal remedy available to it.

5.9. At this stage, it is apposite to refer to and rely upon a recent decision of the Hon'ble Supreme Court of India in the case of K.B. Lal (Krishna Bahadur Page 22 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined Lal) v. Gyanendra Pratap & Ors., reported in 2024 (4) Scale 759, wherein, after revisiting the law on the aspect of condonation of delay, the Hon'ble Apex Court has held as under:

"10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors. (2021) 18 SCC 384). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC 556). Thus, it is apparent that the words 'sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v.

Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under:

"21.1. (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 Page 23 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined not supposed to legalise injustice but are obliged to remove injustice. 21.2. (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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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.

21.6. (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.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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 Page 24 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined 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 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.

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."

5.10. It is also profitable to rely upon the decision of the Hon'ble Supeme Court of India in the case of case of Basawaraj and Another v. Special Land Acquisition Officer reported in 2013 (14) SCC 81 wherein it is held as under:-

"15. The law on the issue can be summarised to the effect that where a Page 25 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

Thus, in view of above law and averment made in the delay application which was factually incorrect, delay application requires to be rejected on this ground as well.

NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined 5.11. Last but not least, it is also profitable to refer to and rely upon ratio laid down by recent past decision of Honourable Supreme Court of India in a case of Pathapati Subba Reddy (Died) BY L RS & ORS V/ S Special Deputy Collector (LA) reported in 2024 INSC 286 : 2024 (4) SCR 241 : 2024 (4) Scale 846 wherein after referring to its previous decisions, summarized the case law on the issue of limitation vis-

a-vis condonation of delay in context of "sufficient cause". It has been so observed and held as under, "[26] On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined 5.12. Keeping in mind the ratio laid down in the aforementioned decisions and applying it to the facts of the case on hand, I am of the opinion that this is a classic case of gross negligence on the part of the public authority while pursuing the legal remedy available to them under the law. In view of the aforesaid ratio of the Honourable Apex Court's decisions, I am of the opinion that the District Court has not committed any error of law, much less any apparent error of law and or any jurisdictional error, which requires interference by this Court under Article 227 of the Constitution of India.

5.13. At last, I would also like to observe that whenever a public authority comes with a plea of sufficient cause by filing a delay application, true and correct facts are required to be stated in the application, failing which no equitable relief can be granted in favor of the authority, as the application of law would apply equally to a private individual and Page 29 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined the State. As observed hereinabove, there is a misstatement made by the plaintiff regarding the application for and receipt of the certified copy of the judgment and decree of the trial court. That would also be an additional ground against the applicant for not condoning the huge and inordinate delay in filing its appeal. By now, it has been a well-settled proposition of law that if any misstatement made by public authority in its delay application then it is self-

sufficient to reject such delay application. As per the decision of the Hon'ble Apex Court in the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2018) 7 SCC 448, wherein held as:-

"11. Whether the respondent made incorrect statement in the application seeking condonation of delay?

There is no dispute whatsoever that the respondent being the beneficiary of the acquisition has been duly impleaded as a Page 30 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined party respondent in the reference cases as is required in law. It not only appeared in the matter through a properly instructed counsel but also filed its written statement opposing the claim for enhancement of compensation but did not choose to lead any evidence whatsoever. In the application filed in the High Court the plea taken by the respondent is as under:

"The applicant submits that, although the applicant being Acquiring Body, was arrayed as opponent in the said reference, the opponent no. 4 herein (Original Opponent No. 1) S.L.A.O. or his subordinate contested the said reference by filing written statement. Therefore, this applicant was unaware about the stand taken by S.L.A.O. as well as the impugned judgment and award."

This averment in the application on the face of it is totally incorrect. [12] The Law & Judiciary Department as early as on 13.4.2000 i.e. to say within the period of 15 days from the date of the award of the Reference Court communicated its decision to acquiesce in the decision of the Reference Court and communicated the same to all the concerned including the beneficiary of the acquisition.

It is not the case that the Executive Engineer did not receive the said communication. Having received the said communication the respondent did not Page 31 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined act in the matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the court. In our considered opinion incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay. [See: (1993)1SCC 572].

13. Whether the High Court properly exercised its discretion?

The High Court in its order having noticed the relevant fact in categorical terms held that there was no substance in the plea that it was unaware about the judgment and award passed by the Reference Court since it was a party before the Reference Court and Page 32 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025 NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined contested the matter. The High Court also found that the decision of the Joint Secretary to acquiesce was communicated to the beneficiary of the acquisition and therefore, its plea about the unawareness of the award and decision taken by the Government cannot be accepted. The High Court in its order emphatically rejected the ground raised by the respondent in that regard. In such view of the matter can it be said that the High Court properly exercised its jurisdiction? It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court ."

NEUTRAL CITATION C/SCA/64/2025 JUDGMENT DATED: 07/01/2025 undefined 5.14. Thus, in view of the above said position of law and the averment made in the delay application wherein there is factually incorrect statement made, on this ground also, delay application requires to be rejected.

6. CONCLUSION:-

6.1. The upshot of the aforesaid observation, discussion, and reasons, I am of the opinion that the order impugned in the petition does not require any interference under Article 227 of the Constitution of India, as no sufficient cause is made out by the petitioner while preferring the appeal almost after 22 years before the District Court after the passing of the judgment and decree by the trial Court. Thus, there are no merits in the petition, and the same is dismissed in limine. No order as to costs.

(MAULIK J.SHELAT,J) MANISH MISHRA Page 34 of 34 Uploaded by MANISH MISHRA(HC01776) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:52 IST 2025