Allahabad High Court
Army Welfare Education Society ... vs First Addl.Judge Small Causes Court ... on 30 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:41340
Court No. - 17
Case :- CIVIL REVISION DEFECTIVE No. - 79 of 2018
Revisionist :- Army Welfare Education Society Adjutant General S Branchandors
Opposite Party :- First Addl.Judge Small Causes Court Court No.18 Lucknow Andanr
Counsel for Revisionist :- Amit Singh,Amit Singh,Bagesh Kumar Shukla,Vijay Pathak
Counsel for Opposite Party :- Vijai Kumar Yadav
Hon'ble Manish Mathur,J.
(Application for Condonation of Delay)
1. Heard Mr. Amit Singh learned counsel for applicant and the opposite party No.2 Mr. Vishwanath Mishra in person. Opposite party No.1 being merely proforma in nature notice is dispensed with.
2. Revision under Section 115 of the Code of Civil Procedure has been filed challenging order dated 16th February, 2018 passed in regular suit No. 334 of 2017 instituted by the opposite party No.2 for declaration and mandatory injunction. During course of proceedings, the revisionists as defendants filed application under order 7 Rule 11 of the Code which by means of impugned order was deferred on the ground that it involved a mixed question of fact and law.
3. Objections to the application for condonation of delay have been filed. A perusal of the affidavit filed in support of application, indicates that reason taken by the revisionist for delayed presentation of revision is that the certified copy of the impugned order was misplaced in the office of the defendants and could not be traced whereafter the same was applied and received on 6th September, 2018 whereafter it was examined by the concerned authority and it was thought proper to obtain legal opinion from the counsel whereafter the revision is being filed.
4. In the objections, it has been stated that no cogent reason whatsoever has been indicated in the application seeking condonation of delay.
5. Office has reported a delay of four months, eight days as on 25th September, 2018 with remark as to whether the instant revision is maintainable.
6. Hon'ble Supreme Court in the case of Amalendu Kumar Bera v. State of West Bengal reported in (2013) 4 SCC 52 has already considered such an aspect particularly in cases filed with delay by government agencies. It has been held that certain leverage is required to be given to the State, its instrumentalities since they are organizations and not private individuals. However it has also been held that delay can not be condoned even in such cases at the mere asking and cogent reasons have to be indicated in the application seeking condonation for it being allowed. Relevant portion of the judgment is as follows:-
" 9.We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent State. There is no dispute that the expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than the technical detection of "sufficient cause" for explaining every day's delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision inUnion of Indiav.Nripen Sarma[(2013) 4 SCC 57 : AIR 2011 SC 1237] the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant Union of India. The High Court refused to condone the delay on the ground that the appellant Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became operational and barred by limitation.
10. ..........True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there are serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under Section 47 till the decree-holder puts the decree in execution. As noticed above, the decree passed in the year 1967 was in respect of declaration of title and permanent injunction restraining the respondent State from interfering with the possession of the suit property of the appellant-plaintiff. It is evident that when the State tried to interfere with possession the decree-holder had no alternative but to levy the execution case for execution of the decree with regard to interference with possession. In our opinion their delay in filing the execution case cannot be a ground to condone the delay in filing the revision against the order refusing to entertain objection under Section 47 CPC. This aspect of the matter has not been considered by the High Court while deciding the petition for condoning the delay. Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in the absence of "sufficient cause" delay shall not be condoned. "
7. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that revisionists have conducted the matter in a very casual and negligent manner. It is not the case of applicants that they were unaware of the order dated 16th February, 2018. On the contrary in the affidavit filed in support of application, it has been stated that they already had certified copy of the order dated 16th February, 2018 which is said to have been misplaced in their office. Even if such a statement can be regarded as correct, the applicants have miserably failed to indicate as to why it took them such a long time in obtaining a duplicate certified copy of the aforesaid order. Absolutely no reasons whatsoever have been indicated as to why such action could not have been taken prior to September, 2018. Even thereafter no dates have been indicated as to when legal opinion was sought and after how much time the revision has been filed.
8. On this core alone, the application is liable to be rejected.
9. Office in its report dated 25th October,2018 has also indicated a remark with regard to maintainability of instant revision since the order impugned is not final in nature nor does it indicate how the trial court has failed to exercise its jurisdiction vested in it or has acted in excess thereof. The order impugned appears to be merely interlocutory in nature.
10. Nonetheless despite the aforesaid remarks of the registry, since the application for condonation of delay is being adjudicated upon, this Court is not adverting to the aspect of maintainability of revision.
11. In view of discussion made herein above, it is quite evident that the present revision has been filed along with an application for condonation of delay without indicating any cogent reason for filing the revision with such considerable delay.
12. In view thereof, the application for condonation of delay is consequently rejected dismissing the revision itself with cost of Rs.1000/-.
Order Date :- 30.5.2024
prabhat
