Bombay High Court
Shri. Gopal Laxman Rajendra vs The Municipal Corporation Of City ... on 5 October, 2021
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2021.10.08
17:30:50 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.619 OF 2018
Gopal Laxman Rajendra, ]
R/at: Rajendra Chawl, in front of ]
Police Station, Nashik Road, Nashik. ] ... Applicant
Versus
1. The Municipal Corporation of ]
City of Nashik. ]
2. The Commissioner, ]
The Municipal Corporation of ]
City of Nashik. ]
3. Estate Manager, ]
Nashik Municipal Corporation, ]
Above all office at Nashik ]
Municipal Corporation, Rajiv ]
Gandhi Bhavan, Sharanpur Road, ]
Nashik. Respondent No.3 for ]
himself and on behalf of ]
Respondent Nos.1 and 2. ] ... Respondents
...
Mr. Girish R. Agrawal for the applicant.
Mr. Subhash V. Gutte for respondent Nos.1 to 3.
...
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CORAM : SMT. BHARATI DANGRE, J.
DATED : 05TH OCTOBER, 2021.
ORAL JUDGMENT:-
1. The applicant is aggrieved by the order dated 26/06/2018
passed by the District Judge-10, Nasik in Civil Misc. Application
No.151 of 2015 instituted by the Municipal Corporation of City
of Nasik and two others. The order is passed in an application
seeking condonation of delay in preferring appeal against
judgment and order dated 23/08/2012 by the 6 th Joint Civil
Judge, Senior Division, Nasik in Regular Civil Suit No.313 of
2011.
2. By the said application, a relief was sought to condone the
delay of 2 years, 8 months and 16 days in preferring the appeal.
By the impugned order, learned District Judge has condoned the
delay on being satisfied with the reasoning stated in the
application and by recording that the delay appears to be
"probable and acceptable" and it has been explained by setting
out the sufficient reasons. The court records that the delay of 2
years, 8 months and 16 days is not intentional, but accidental
and, therefore, to afford a fair opportunity and to enjoy the right
of appeal the delay deserves to be condoned.
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3. The brief background and the impugned order would
reveal that the applicant had filed a regular civil suit for recovery
of possession of suit property or alternatively seeking a
declaration that the act of Nashik Mahanagar Palika acquiring
the suit property without payment of compensation is illegal. He
sought compensation as per the current market rate. The civil
court settled the issues and the burden was cast on the plaintiff to
prove that he is entitled for possession of the suit property or
compensation for damages and on the issue whether the
defendants have proved that in the year 1984, the plaintiff
delivered the suit property to them voluntarily and without
consideration, the issue has been answered partly in the
affirmative. By the judgment and order dated 23/08/2012, the
following order is passed:
"1. The Suit is decreed. No order as to
costs.
2. Defendants are directed to consider and
grnat compensation or release TDR to the
plaintiff within six months, after compliance
of all necessary formalities by the plaintiff.
3. Decree be drawn up, accordingly."
4. Being aggrieved by the said judgment, the Municipal
Corporation of City of Nashik preferred an appeal in the year
2015 along with an application for condonation of delay seeking
to condone delay of 2 years, 8 months and 16 days in preferring
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the appeal. The scantly drafted application states that the delay
has occurred on account of administrative reasons on the part of
the applicant. Relevant portion of paragraph 3 of the application
reads as under:
"3) The applicant submits that the said
delay has occurred due to some administrative
reasons of the office of the applicant. The
decision was communicated to the Court
Department of the appellant and they
forwarded the certified copies to the Estate
Department for necessary action. However,
there were certain changes in the office of
Estate Manager and also transfer of Estate
Manager and the post was vacant for a long
period and the said work was being looked
after by incharge person. At the same time in
this period the certified copies were not
traceable. When the copies were traced, it was
brought to the notice of Estate Manager who
immediately after going through the judgment
and decree proposed an appeal, and
accordingly, file was put up for necessary
approval for filing an appeal before Hon'ble
Commissioner, NMC, Nashik and in this
process the time is lost in obtaining approval.
The Hon. Commissioner gave approval for
filing appeal. Then thereafter the time is again
lapsed for sanction and approval of the
required Court fee stamp for the purpose of
filing appeal. The delay in filing appeal is
unintentional and there is sufficient reasonable
cause for condonation of the same."
5. The prayer made in the application was opposed by the
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present petitioner. In ignorance of the said opposition, the
application came to be entertained by the appellate court by
recording that there are sufficient reason for not preferring the
appeal against the impugned judgment within the period of
limitation and the reasoning of the learned Judge is to be found
in paragraph 8, which reads thus:
"8. Along with the application, petitioner
Bhaskar Uddhavrao More, Estate Manager,
Nashik Municipal Corporation had filed his
affidavit at Exh.3. After considering the
material placed on record on behalf of the
petitioners, I feel that there were sufficient
reasons to the petitioners for not to prefer
appeal within the stipulated period of
limitation as the appellant is a public
institution. At this stage, there is no record
indicating that on the day of decision of the
suit the petitioners were present before trial
Court and they were well aware regarding
decision of the suit on the date of decision only.
The petitioners is a public institution. The
reasons set forth by the petitioners in this
application for condonation of delay appears
to be probable and acceptable. The petitioners
have explained the delay by making out
sufficient reasons in preferring appeal.
Considering the application and affidavit of
petitioners, I feel that there were sufficient
grounds to petitioners for not to prefer appeal
against that judgment and decree within
stipulated period of limitation. The delay of 2
years, 8 months and 16 days caused in
preferring appeal is not intentional but it
appears to be accidental. To have fair
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opportunity and to enjoy the right of appeal,
the delay caused in preferring appeal against
that judgment and decree is required to be
condoned in the interest of justice. The
application deserves to be allowed subject to
payment of costs to opponents."
6. It is, no doubt, true that justice to a party cannot be
defeated merely on the ground of delay. However, one cannot
forget the Limitation Act, which prescribes the period within
which an action can be instituted. The power to condone the
delay and permit the claim to be entertained, no doubt, has to be
construed liberally, but the rhetoric delay being on account of
administrative reason must receive a rebuke. Gone are those
days, when the officers used to say that the file was required to
be moved from one table to another and one officer to another
and this caused the delay. With the advancement of technology
and when the officers of the Government and other authorities
specifically the respondent-Corporation, are well equipped with
the assistance of the Law Officers, this travelling of files from
one table to other can no longer be considered as an excuse. The
casual manner, in which the Government / Semi-Government
Departments function and come up with the lame excuses has to
be deprecated and this is what the Hon'ble Apex Court in its
judgment in the case of State of Uttar Pradesh & Ors. v.
Sabha Narain & Ors. reported in 2021 (1) Civil Court Cases
800 (SC), has done by recording that in absence of cogent and
plausible ground, the application for condonation of delay would
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only prove the lethargy and incompetence of the Government
Departments. Their Lordship of the Apex Court has held as
under:
"We have repeatedly discouraged State
Governments and public authorities in
adopting an approach that they can walk in to
the Supreme Court as and when they please
ignoring the period of limitation prescribed by
the Statutes, as if the Limitation statute does
not apply to them. In this behalf, suffice to
refer to our judgments in the State of Madhya
Pradesh & Ors. v. Bheru Lal [SLP [C] Diary
No.9217/2020 decided on 15.10.2020] and The
State of Odisha & Ors. v. Sunanda Mahakuda
[SLP [C] Diary No.22605/2020 decided on
11.01.2021]. The leeway which was given to
the Government/public authorities on account
of innate inefficiencies was the result of certain
orders of this Court which came at a time when
technology had not advanced and thus, greater
indulgence was shown. This position is no
more prevalent and the current legal position
has been elucidated by the judgment of this
Court in Office of the Chief Post Master
Generaln& Ors. v. Living Media India Ltd. &
Anr., 2012(2) Civil Court Cases 001 (S.C.) :
2012(1) Apex Court Judgments 646 (S.C.) :
2012 (3) SCC 563. Despite this, there seems to
be a little change in the approach of the
Government and public authorities.
7. The observations of the Apex Court in the case of
Amalendu Kumar Bera & Ors. v. State of West Bengal
reported in (2013) 4 SCC 52 have amply illustrated the term
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'sufficient cause' as the one, which should be considered with
pragmatism in justice oriented approach rather than technical
detection. However, in paragraph 10, Their Lordships have
observed as under:
"10. ...... Curiously enough in the
application for condonation of delay no
sufficient cause has been shown which would
entitle the respondent to get a favourable
order for condonation of delay. 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."
8. Absence of "sufficient cause" contemplated under Section
5 of the Limitation Act would cast a burden upon the party, who
approaches the court seeking condonation of delay. The
distinction between the party being a Government Department or
a Government itself and a private litigant cannot be made out
and though the courts are expected to take a liberal view in
condoning the delay, the least expected is that the State shall
come up with some plausible or satisfactory explanation which,
surely should fall short of negligence or lethargy on part of the
Department or its officers.
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9. When the present application is perused by which the
respondent-Corporation has sought condonation of delay, it just
depicts a perfunctory approach of the officers of the Department
with an assumption that merely throwing an excuse that delay
has been accounted on part of administrative reason, the court is
likely to be condone the delay. The explanation, which is
tendered in paragraph 3, does not even make an attempt to
explain the delay, but the reason stated is that there was a
transfer of an officer and the post was vacant for a long time and
the work was looked after by some other in-charge officer. The
Government and its authorities must be treated as any other
ordinary litigant and the due diligence on the part of the
individuals to approach the court would apply with equal force
to the Government and its officers. The habit of awakening out
of slumber, one fine hour of the day and throwing jargon of
scanty reason justifying the delay must be discouraged and,
particularly, when the Government and its officers are in lis with
its own citizens, since it is the fundamental duty of the State to
protect the rights of the citizens. Such a callous approach on part
of the Government and its officers has to be deprecated.
10. On perusal of the impugned order, it can be seen that the
learned District Judge has also dealt with the application in a
perfunctory manner and the application was allowed recording
that the delay was not intentional but accidental and that the
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applicant has shown sufficient cause, which is a necessary
concomitant for condoning the delay under Section 5 of the
Limitation Act. Such an approach on the part of the authorities
and even on part of the court cannot be permitted at this hour of
time, when the whole system is grappling with delay and arrears
have choked the judicial system. The fact of delayed justice has
driven all involved, to rethink about the court proceedings and to
search better ways of getting justice. Not entertaining stale
claims casually on the pretext of administrative convenience is
one step, which will cleanse some dust on some files.
The impugned order, therefore, deserves to be quashed and
set side since it does not take into account the proper and
sufficient cause, which should have been established, before the
delay was condoned.
11. The civil revision application is allowed in terms of prayer
clause (b) of the application. No order as to cost.
[SMT. BHARATI DANGRE, J.]
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