Allahabad High Court
State Of U.P.Thru' D.I.O.S. ... vs The D.J. Varanasi & Others on 17 August, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Court No. - 26
Case :- WRIT - C No. - 7327 of 2002
Petitioner :- State Of U.P.Thru' D.I.O.S. Varanasi
Respondent :- The D.J. Varanasi & Others
Counsel for Petitioner :- S.C.
Counsel for Respondent :- C.S.C.,Prem Chand Pandey,Rakesh Pandey
Hon'ble Siddhartha Varma,J.
The instant writ petition was filed by the petitioner against the orders dated 28.5.1999, 10.7.2000 and 8.1.2001 passed by the respondent no. 1 and the judgement and decree dated 27.1.1998 passed by the respondent no. 2.
The facts of the case are that when a suit being Suit No. 14 of 1996 was decreed by the respondent no. 2, the petitioners filed a first appeal being First Appeal No. 386 of 1998 alongwith an application under Section 5 of the Indian Limitation Act. The application under Section 5 of the Indian Limitation Act, however, was dismissed for want of prosecution on 28.5.1999 and consequently, the memo of appeal was rejected as being barred by time. There is no averment in the writ petition that a decree was prepared thereafter. However, against the order dated 28.5.1999, the petitioners filed an application under Order 41 Rule 19 and under Section 151 of the C.P.C. for recalling of the order. This application was accompanied by an affidavit but it was again on 10.7.2000 dismissed in default. The petitioners on 23.7.2000 filed an application under Order 9 Rule 4 for the recall of the order dated 10.7.2000. The District Judge, Varanasi, on 8.1.2001 dismissed the application filed by the petitioners on 23.7.2000. The District Judge, upon going through the record, found that there was no ground to set aside the order dated 10.7.2000.
Learned Counsel for the petitioners has submitted that the restoration application should have been allowed and the First Appeal should have been heard on merit.
In reply, the learned counsel for the respondent no. 3 has submitted that in view of the decision rendered by the Supreme Court in Radheshyam and another vs. Chhabi Nath and others 2015 (5)SCC 423, the instant writ petition under Article 226 of the Constitution of India was not maintainable. Further more, he has submitted that after the order dated 28.5.1999 was passed and the memo of First Appeal was rejected, the petitioners should have filed a second appeal. Still further, he has submitted that neither in the application for the recall of the order dated 28.5.1999 nor in the application for the recall of the order dated 10.7.2000 any ground, much less reasonable ground, has been given and this is also what has been found by the District Judge in his order dated 8.1.2001.
Upon having heard the rival submissions and after having gone through the record, I find that as a matter of fact, the writ petition under Article 226 of the Constitution of India was not maintainable in view of the judgement 2015 (5)SCC 423(supra). Further more, I find that despite the fact the petitioner which is a State Authority and had all the state machinery at its disposal was not pursuing the matter earnestly.
In AIR 1992 A 275 (Krishi Utpadan Mandi Samiti, Amroha V. Ganga Ram S/o Mohan, and others,), this Court was of the view:-
"33. No doubt the discretion in condoning the delay is to be exercised in favour of the party who successfully proves sufficient cause and good cause which has prevented him in approaching the Court well within the period of limitation,
34. Applying the maxim 'vigilantibus et non dormientibus jura subveniunt' means the laws come for rescue of those who are vigilant but were not sleepy. In Rajendra Singh v. Santa Singh, AIR 1973 SC 2537 it has been ruled by the Apex Court that:--
"Object of the law of limitation is to prevent disturbance or deprivation of what may have acquired in equity and justice."
35. In this context, the maxim 'Interest reipublicae ut sit finis litium' cannot be lost sight of which means that there should be an end of litigation and interest of the State also requires that there should be an end to the litigation so as to avoid uncertainities and possibilities of the parties being dragged in the Court for indefinite period and to get over this the law of limitation has been enacted extending a valuable right in favour of party against whom within the period of limitation no action is brought before the Court save in exceptional cases where a case for condonation of delay is made out otherwise liberal exercise of the jurisdiction under S. 5 of the Act will lead not only to uncertainities of litigation but also no and to any litigation. The contention of the learned counsel that discretion is to be exercised in favour of the appellant in condoning the delay has therefore no force. No doubt, explaining sufficient cause and good cause in seeking condonation of delay is a condition precedent for Courts' indulgence and the same is to be exercised in favour of the party who has acted reasonably, diligently and in a bona fide manner. The principle behind it, is that once limitation is passed, within which no step with due diligence is taken by the party, a valuable right accrues in favour of the decree holder and the decree-holder may not be deprived of that right lightly. See Ramlal v. Rewa Colafields Ltd., AIR 1962 SC 361 : (1961 All LJ 815). Therefore apart from sufficient cause and good cause, the party claiming indulgence must prove that he has reasonably diligent in prosecuting the proceedings. This being the acid test for condoning the delay as discussed above the appellant's case does not fall in it who has acted with gross negligence, and accordingly the submission of the learned counsel for condoning the delay has no force and the ratio laid down in the cases of Collector Land Acquisition (supra) and G. Ramegowda, Major (supra) does not apply to the facts of the instant case."
The Supreme Court in AIR 1987 SC 1353(Collector, Land Acquisition, Anantanag v. Mosst. Katiji) has also ruled:-
"Generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."
In the instant case, the chronology of events shows that there had been gross negligence on the part of the petitioners. They were definitely not vigilant.
After the decree passed on 27.1.1998 by the Trial Court, the First Appeal was filed very belatedly alongwith an application under Section 5 of the Indian Limitation Act. The application under Section 5 of the Indian Limitation Act was also dismissed in default on 28.5.1999 and the memo of the first appeal was also rejected as being barred by limitation. The application for the recalling of the order dated 28.5.1999 was also dismissed in default on 10.7.2000 and, therefore, I feel that the District Judge rightly rejected the application under Order 9 Rule 4 by his order dated 8.1.2001.
The writ petition, therefore, being devoid of merit is dismissed.
Order Date :- 17.8.2017
praveen.
