Ashok S/O Balaji Ratan vs Nagpur Improvement Trust
2004 Latest Caselaw 437 Bom

ORDER

A.H. Joshi, J.

1. This revision application is arising out of judgment and order passed by the 5th Additional District and Sessions Judge, Nagpur, whereby the learned Judge has allowed the application for condonation of delay filed by the appellant-present respondent on cost of Rs. 200/-.

2. Regularization of unauthorised construction carried on by the present applicant in violation of the sanctioned construction plan is the subject matter of suit decree wherein has led to present revision application. It is seen that the respondent herein had moved by a notice under Section 52 of the N.I.T. Act read with Section 286(2) of City of Nagpur Corporation Act, 1948. The notice was issued alleging that the construction is in violation of bye-laws framed under Maharashtra Regional and Town Planning Act. The notice issued by the present respondent was called in question in Regular Civil Suit No. 227/90. The suit resulted in a decree where the action of the respondent in declining to refuse the regularisation of unauthorised construction, was held illegal by the learned Joint Civil Judge, Junior Division, Nagpur. It is said judgment and decree passed in R. C. S. No. 227/90 passed on 27th February, 1992, that was called in question by filing Regular Civil Appeal by the present respondent and the appeal being delayed, the application for condonation of delay was filed which was registered as M.C.A. No. 614/98. The said application for condonation of delay was allowed and the judgment and order therein is the subject matter of present revision application.

3. The applicant herein has taken exception to that order with a plea that the delay has not been properly explained much less explained day to day. The bone of contention of the applicant is also that all details as to the trace of papers have moved in the office of the respondent herein and ultimately resulted in delay of two months and 25 days is caused is not explained. The learned counsel further and vehemently relied upon the judgment of this Court delivered in Civil Application No. 1400/98 in Second Appeal Stamp No. 378/98 where this Court (Coram : S.P. Kulkarni, J) rejected the application for condonation of delay by order dated 3rd August, 1999. The applicant has contended that in that case there was delay of 295 days and it was not properly explained. He also tried to contend that the manner in which the delay was explained in the said case and the manner in which it has been explained in the present case is same or similar as well the applicant in that case is N. I. T. which is the present respondent. He, therefore, urged that the said party i.e. the present respondent having suffered by the judgment, the ratio laid down in that case should govern the present case as well. All the details of the case as involved in the second appeal (i.e. S. A. Stamp No. 378/1998) are not before this Court as the petitioner herein did not bring those on record.

4. The learned counsel for the applicant relied upon the judgment of the Apex Court in between P.K. Ramchandran (Appellant) v. State of Kerala and Anr. (Respondents). In that case delay of 565 days was sought to be explained by the State of Kerala by explaining the manner in which the time was lost in seeking the approval, taking decision to file appeal etc., and upon condonation of delay, the matter going to the Supreme Court and Their Lordships of Supreme Court disapproved the manner in which the delay was condoned. Their Lordships observed that;

"The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days"

In my view the judgment of the Hon'ble Supreme Court is not liable to be applied to the set of facts involved in the present case.

5. On the other hand the learned counsel for the respondent relied upon the judgment of Supreme Court where the Lordships of Supreme Court have upon examination enumerated the matters which requires to be attended to while examining the liberal approach that is wanted in umpteen number of cases. It would be fruitful to refer to this observation of the Hon'ble Supreme Court, which are quoted below for ready reference.

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing, to condone delay can result in a meritorious matter being thrown out at the very threshold and case of justice being defeated. As against this when delay is condoned the highest that can happen is that the cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. 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 non-deliberate delay.

5. 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.

6. It must be grasped that judiciary is respect not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

There Lordships further observed that --

"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 even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

6. In view of the law as discussed hereinabove and the facts of the case, I am of the view that I shall have to see as to what shall get condoned if the delay is not condoned. If the grievance of the applicant is not opened for scrutiny, observance of mandatory provision of law shall stand neglected and balance of justice cannot be struck if the delay is not condoned. It will have to be seen what gets condoned is illegality, if delay is not condoned which certainly cannot be allowed.

The learned First Appellate Court has, therefore, rightly passed order condoning delay on cost in token in a sum of Rs. 200/- and the order impugned cannot be faulted being in violation of law, equality or justice or error of exercise of jurisdiction.

7. The learned counsel for the applicant expressed serious concern about the loathsome approach and the manner in which the matters are dealt with in the office of the respondent. In response, the learned counsel appearing for the respondent has expressed that N.I.T. is taking steps to streamline the working and to ensure that such occasions do not recur.

8. In the result, the revision application is dismissed being without any merit.

Rule discharged and interim stay vacated.