Gujarat High Court
Gram Panchayat , Kandhi vs Heirs Of Rambhai Khimabhai Harijan on 7 January, 2025
NEUTRAL CITATION
C/SCA/223/2025 ORDER DATED: 07/01/202514347
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 223 of 2025
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GRAM PANCHAYAT , KANDHI
Versus
HEIRS OF RAMBHAI KHIMABHAI HARIJAN & ORS.
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Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1
MR. RADHESH Y VYAS(7060) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/01/2025
ORAL ORDER
1. The present petition is filed by the original defendant (appellant/applicant) under Article 227 of the Constitution of India against the judgment and order dated 16.10.2024 passed by the 2 nd Additional District Judge, Gir-Somnath in Civil Miscellaneous Application No.32 of 2023. Petitioner has prayed for the following reliefs:-
"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 16-10-2024 passed by the Court of 2nd Additional District Judge, Gir- Somnath at Una in Miscellaneous Civil Application No. 32 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 implementation, operation and execution of the judgement and decree passed by the court of the Principal Senior Civil Judge, Page 1 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined Una in Regular Civil Suit No. 98 of 2001 dated 12-04- 2019, may kindly be ordered to be stayed, 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 the Regular Civil Suit No.98 of 2001 filed by the respondents before the Principal Senior Civil Judge, Una.
3. Brief facts of the case are as under:-
3.1. The aforesaid suit appears to have been filed by the respondents-plaintiffs seeking permanent injunction against defendants. After considering the evidence on record, the trial Court has decreed the suit in favour of plaintiff vide judgment and decree dated 12.4.2019.
3.2. Such judgment passed by the trial Court came to be challenged by defendants by Regular First Appeal filed under Section 96 read with Order 41 of the Code of Civil Procedure, 1908 before the District Judge, Una. As there is a delay of about 1492 days (more than four years), Civil Miscellaneous Application No.32 of 2023 came to be filed in such appeal.
3.3. The plaintiff has objected such delay application by filing its detailed reply. After hearing the parties and considering the submissions made in the delay application, vide its impugned Page 2 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined judgment dated 16.10.2024, the 2nd Additional District Judge, Gir-
Somnath rejected such delay application. 3.4. Being aggrieved and dissatisfied with rejection of delay application of plaintiff - petitioner by the 2 nd Additional District Judge, Gir-Somnath vide its impugned order dated 16.10.2024, passed in Civil Miscellaneous Application No.32 of 2023, present petition has been filed.
CONTENTION OF THE PETITIONER:-
4. Heard learned advocate Mr. Vishal C. Mehta for the petitioner. 4.1. He would submit that learned District Court has without appreciating averments made in the application and by not appreciating law laid down by the Hon'ble Apex Court of India while adjudicating delay application, erroneously rejected the application of the plaintiff in filing its First Appeal. 4.2. He would further submit that because of non-intimation of impugned judgment and decree passed by the Trial Court by advocate engaged by the plaintiff resulted into delay in filing Regular Appeal.
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NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 4.3. He would further submit that there is no malafide, negligence and or dilatory tactic used by office of the plaintiff and there is no ill- intention on the part of the plaintiff to file appeal after delay of 1492 days.
4.4. To buttress his argument, he relied upon decisions rendered by the learned Single Judge of this Court.
4.4.1 First one, 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 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 Page 4 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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 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."
4.4.2. Another one rendered in the case of State of Gujarat v. Arunkumar Sukhdevbhai Trivedi passed in Second Appeal No.3619 of 2020. Paras 14, 15 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 Page 5 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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 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 Page 6 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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 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.
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 Page 7 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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. Bherulal 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 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 Page 8 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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 interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.
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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 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.
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NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 4.5. Learned Advocate Mr. Mehta, thus, concluded his argument with the request that considering the fact that petitioner is a Gram Panchayat being a Public Authority, it requires to get legal advice from its panel advocates / advocate engaged for prosecuting any legal remedy and ordinarily, officer concerned would follow the legal advise given to them. So, he would request that on suitable condition / cost, if this Court deems it fit to impose upon the plaintiff, delay may be condoned.
ANALYSIS
5. I have gone through the averment made in the petition as well as the documents which are annexed and also perused the impugned delay application as well as order passed thereon by the District Court concerned.
5.1. It appears from the documents which are available with the petition suggesting a fact that judgment and decree challenged in the appeal was passed on 12-04-2019. It is so stated in para-2 of the impugned delay application filed by the petitioner that the certified copy of said judgement/decree impugned in the appeal was applied on 16.01.2023, which was ready on 20.01.2023. Thereafter, it appears that regular civil appeal was filed by petitioner on 10-05- Page 10 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 2023 wherein there was delay of more than 4 years in filing it which was filed on 05-06-2023. At this stage, its requires to be noted here that though certified copy of the judgement/decree impugned in the appeal was ready on 20-01-2023 but still petitioner could not file appeal till 10-05-2023 and in fact impugned delay application was filed on 05-06-2023. Prim facie, this shows insensitive approach on the part of a public institution who is pursuing legal remedy in the court of law and this would be one of factors to be taken into account while appreciating submissions made by learned advocate of the petitioner.
5.2. When I have examined cause of the delay so mentioned in the impugned delay application, except blaming the advocate engaged by the petitioner before the trial court, nothing comes out from the application. It is very easy to blame the advocate, thereby tried to shift entire responsibility on the shoulder of advocate. 5.3. It is worth to note that in para-3 & 4 of impugned delay application, it has been admitted by the petitioner that it came to notice of the petitioner about passing of judgement/decree impugned in the appeal in month of October, 2019 but despite requesting its learned advocate who has not paid any heed resulted into late filing Page 11 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined of the appeal i.e. in month of May/June, 2023. Such facts mentioned in the application is bereft of any particulars including none of the exchange of the letters between the petitioner and its advocate in relation to judgement/decree impugned in the appeal were placed it on record. The only so called explanation is COVID-19 situation but nothing has come out what steps have been taken by petitioner between October, 2019 to February, 2022 regards to challenge of the judgement/decree passed by the trial court. The petitioner being public authority could not have stopped its work in said period. This itself show that explanation is lacking bonafide. 5.4. Be that as it may, such facts would not constitute a sufficient cause and can not be considered as a ground for condonation of delay as much as that any advice received by the litigant who is an authority at least requires to understand the sensitivity of nature of proceedings especially when its earlier suit got dismissed and subsequent suit filed by opponents herein allowed. 5.5. It is also required to be taken note that when the advocate who was engaged by the petitioner initially not informed about passing of the judgment and decree in earlier suit but very advocate was engaged by the petitioner / defendant in the said subsequent suit Page 12 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined filed by respondents herein speaks volume about the conduct of official of the plaintiff about conducting of legal matters in the Court of law. It is not the case of the petitioner that no other advocate was available in its area except one who was engaged. In fact after March, 2022 having so engaged another lawyer, petitioner could not able to file appeal till May/June 2023.
6. Learned advocate Mr. Mehta appearing for the petitioner has relied upon two decisions of this Court whereby he would emphasize that liberal approach should be taken by the Court when there is no negligence on the part of applicant and there is no malafide attributed 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, delay requires to be condoned by the Court.
6.1. I have gone through both these decisions passed by learned Single Judge of this Court referring case law set out by the Honb'e Apex Court of India on the aspect of condonation of delay viz-a-viz sufficient cause. There is no cavil that wherever there is a delay application is filed wherein a sufficient cause is made out and no negligence / malafide / dilatory tactics used by the applicant, Page 13 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined ordinarily the approach of the Court would be deemed towards granting such application thereby matter can decided 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 delay of 240 days in filing the appeal. After considering the averments made in the application, discretion used by the appellate Court in favour of the applicant and there was no negligence / malafide on the part of appellants / applicants of that case, this Court would find that no interference is required while exercising its power under Article 227 of the Constitution of India. Once the trial Court and 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 such discretion used by the Court concern unless such discretion is used arbitrarily or manifestly contrary to the records germane from the delay application. 6.2. In the case of Arunkumar Sukhdevbhai Trivedi (supra), wherein there was delay of 703 days at the instance of the State in filing the appeal before this Court and as observed by this Court that there is no malafide or negligence on the part of applicant in not filing the second appeal, delay was condoned. Page 14 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025
NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 6.3. Both these decisions would not be applicable to the facts of the present case in as much as in those aforesaid decisions, either a positive discretion exercised by the District Court concerned in favour of the applicant and or in absence of any negligence/malafide on the part of the applicant, a delay of 703 days was condoned by this Court.
6.4. So far as present case is concern, considering entire set of facts and averments made in the impugned delay application, it has come on record that petitioner was totally lethargic, negligent and remained silent for quite long time after passing of the decree. Thus, in view of aforesaid facts and circumstance, the District Court concerned has not exercised its discretion in favour of petitioner rightly so because neither any sufficient cause made out by the plaintiff nor such approach on the part of the District Court can be said to be an arbitrary in nature which requires interference by this Court in its jurisdiction under Article 227 of the Constitution of India.
7. It is true that length of delay is not material while considering any delay application but when there is gross delay like in the present one i.e. 1492 days (more than 4 years) delay in filing appeal, there is Page 15 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined some relevance to such gross delay. After going through the entire set of facts and documents which are annexed to the petition, I am of the view that petitioner is unable to show any sufficient cause which prevented it in filing appeal except one fact that it remained negligent being a public authority while pursuing the legal remedy available to it.
7.1. 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 Lal) v. Gyanendra Pratap & Ors. reported in 2024 (4) Scale 759 wherein after re-visiting 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 Page 16 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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 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 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 Page 17 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 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."
emphasized supplied.
7.2. It is also profitable to rely upon the decision of 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 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."
Emphasized supplied.
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NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined 7.3. Lastly, it is apt to rely upon the decision of Honourable Supreme Court of India in a case of RAJNEESH KUMAR & ANR V/S VED PRAKASH reported in 2024 (14) SCALE 406 wherein held as under, "[10] It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.
[12] As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, 1971 2 SCC 860, wherein this Court held as under:-
"The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who Page 19 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."
(Emphasis supplied) 7.4. Thus, in view of aforesaid clear pronouncement of law by Honourable Supreme Court of India on issue of condonation of delay, if apply to the facts of the present case, petitioner has miserably failed to make out sufficient cause in its delay application.
8. Lastly, it is apposite to refer the judgment of Hon'ble Apex Court in the case of M/s Garment Craft Vs. Prakash Chand Goel reported in 2022 4 SCC 181, more particularly Para-18 which reads as under :-
"[18] Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or Page 20 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025 NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., 2001 8 SCC 97 as observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."Page 21 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025
NEUTRAL CITATION C/SCA/223/2025 ORDER DATED: 07/01/202514347 undefined
9. Keeping in mind the ratio laid down in the aforementioned decisions applying to the facts of the case on hand, I am of the opinion that this is a case of gross negligence at the hands of public authority while pursuing legal remedy available to them under the law. In view of the aforesaid ratio of the decisions of Supreme Court of India including in the case of M/s Garment Craft (supra), I am of the opinion that District Court has not committed any error of law much less any gross/apparent error of law thereby not allowed impugned delay application then no interference is required by this Court under Article 227 of the Constitution of India.
CONCLUSION
10. The upshot of the aforesaid observation, discussion and reasons, I am of the opinion that order impugned in the petition does not requires 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 more than 4 years from passing of judgment and decree passed by the trial Court. Thus, there is no merit in the petition and the same is hereby dismissed. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 22 of 22 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:21:43 IST 2025