Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Priya Halder & Ors on 20 September, 2024
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Prasenjit Biswas
MAT 869 of 2024
With
CAN 1 of 2024
With
CAN 2 of 2024
The State of West Bengal & Ors.
-Versus-
Priya Halder & Ors.
For the Appellants : Mr. Sommnath Ganguly,
Mr. Tapas Kr. Dey
For the Respondent No. 1 : Mr. Santanu Chatterjee,
Mr. Rajendra Kr. Nandi
For the Respondent Nos. 2-5 : Mr. Subhrangsu Panda,
Ms. Mithu Singha Mahapatra,
Ms. Ina Bhattacharyya.
Hearing Concluded on : 17.09.2024
Delivered on : 20.09.2024
Prasenjit Biswas, J:-
In Re: CAN 1 of 2024
1. This is an application filed at the behest of the appellants/petitioners seeking
for condonation of delay in preferring the instant appeal challenging the order dated
13.07.2023 passed by the learned Single Bench of this Court in connection with WPA
18757 of 2022. As per report submitted by the Additional Stamp Reporter there is a
delay of 284 days in preferring this appeal.
2. It is stated by the petitioner that they received the order from their learned
Advocates on 31.08.2023 and immediately thereafter they sought instruction from the
concerned department that what course of action is to be taken to the said impugned
order. The department decided to prefer appeal against the said impugned order dated
23.11.2023 and the same was finalized on 20.12.2023 by engaging learned Advocate.
As per request of the department the learned Advocate on record applied to obtain a
certified copy of the impugned order. It is stated by the petitioners that the learned
Advocate although applied for getting certified copy of the order but somehow it was
misplaced and went out of his mind. When the department gave a reminder to the
learned Advocate for filing appeal against the impugned order then it has come to its
knowledge from the learned Advocate that the counterparts of application for getting
certified copy of the order has been lost. It is further stated by the petitioners that in
the mean time a contempt application was taken out by the writ petitioner and as
such a fresh application was made on 10.04.2024 for getting the certified copy of the
order and ultimately on 22.04.2024 certified copy of the impugned order was obtained
by the petitioners. Thereafter proposal for preferring appeal against the impugned
order was approved by the authority concerned and the learned Advocate on record
was requested to prepare the memo of appeal. Thereafter learned Advocate prepared a
draft memo of appeal which was ultimately settled with the learned Senior Advocate
and sent to the department for its approval. The learned Advocate got it back from the
department concerned on 16.04.2024 and final approval was received by the learned
Advocate on 30.04.2024 with a request by the department for filing the appeal and
connected application. As such the appeal was filed challenging the said impugned
order passed by the learned Single Bench along with an application with a prayer for
condonation of delay in preferring the same.
3. We have anxiously considered the submissions advanced by both the parties.
Perused the grounds as stated by the appellants in the application for condonation of
delay filed under Section 5 of the Limitation Act.
4. The general principle underlying the condonation of delay is that courts have
discretionary power to extend the time limit in cases where the delay was due to
genuine and valid reasons. The courts examine each case on its merits and consider
factors such as the explanation for the delay, the sufficiency of the cause shown, the
absence of negligence, and the potential prejudice caused to the other party. The term
"sufficient cause" is not defined explicitly and varies on a case-to-case basis. The
Court has a wide discretion in determining what constitutes as sufficient cause,
depending upon the facts and circumstances of each case.
5. Can a mere narration of facts showing the slow-paced manner in which the files
move from one table to another in an administrative set-up be considered a sufficient
explanation for breaching the limitation? Is it fair to take away a very valid ground for
a counter-attack on the part of the private respondent merely because the state can
provide an 'explanation' of how it may have caused an inordinate delay in making a
filing? An 'explanation' is when all of the facts and layout of the cause are provided
which helps to clarify the circumstances of a particular event to point out that
something has happened due to no fault of the person seeking condonation. Insofar as
the question as to condonation of delay by resorting to Section 5 of the Limitation Act
is concerned, delay can be condoned if 'sufficient cause' is shown and the approach of
the courts should be liberal guided by legal principles. At the same time, dilatory
tactics, if borne out from materials, shall be treated sternly and liberal approach
cannot be extended to those persons.
6. It appears from the application filed by the petitioner that the department
concerned decided to prefer the appeal challenging the impugned order on 23.11.2023
and as such advocate was engaged to prefer appeal on 20.12.2023. The application
was taken out for getting the certified copy of the impugned order dated 13.07.2023
and after that as it was found misplaced and went out of their mind, they again filed
the application for obtaining certified copy of the same on 10.04.2024. There is no
such plausible explanation of delay by the petitioners from the date i.e. 23.11.2023,
when the department decided to prefer appeal and to the date when ultimately they
obtained the certified copy of the order. The explanation so offered by the present
applicants/appellants to demonstrate sufficient cause was delayed filing of the appeal
which is to our opinion is not explanation in the eye of law rather it is an excuse. The
appellants could not decide whether they had to challenge the impugned order or not
despite they were fully aware of the prescribed period of limitation. It appears from
their statement made in the petition that they had miserably failed to demonstrate
that they were diligence and bona-fide to make out sufficient cause for condoning the
delay. So, in our opinion that delay in filing the appeal has not been sufficiently
explained and there exists no sufficient cause for condoning the delay in filing the
aforesaid appeal. We are unable to understand from the statements as made out in
the petition that what prevented the appellants/petitioners to file this present appeal
within the stipulated period of time as enshrined in the Act.
7. The State is to be treated at par with any other litigant and no special favour is
to be bestowed on them while considering their petition for condonation of delay
merely by virtue of the fact that they are the Government. The State Government as
any other litigant is to explain what "sufficient cause" prompted them to require the
indulgence of the Court to condone the delay, by exercising its discretion. The Court is
also to consider if there was gross negligence, deliberate inaction, or lack of bona fides
on the part of the litigant or its Counsel, each case would have to be considered on the
peculiarity of its own facts
8. We are of the view that the discretionary power is only to be exercised when
sufficient cause is made out and compelling reasons are provided for condonation of
delay. In our opinion, the period of delay has not at all been accounted for and no
sufficient cause has been made out for executing the delay in filing the appeal. There
is no doubt that whether it is a department of the government or a private party, the
provisions of law applicable are the same unless the statute itself makes any
distinction. We are of the opinion that in the present case the appellant is guilty of
such inaction or negligence as would deprive it of the protection of Section 5 of the
Limitation Act. In the present case, one does not find any such reason provided which
would enable this Court to condone the delay. In fact, it is crystal clear that the
appellants have acted in a lackadaisical manner and filed this appeal belatedly.
9. What needs to be emphasized is that even though a liberal and justice-oriented
approach is required to be adopted in the exercise of power under Section 5 of the
Limitation Act, the courts can neither become oblivious of the fact that the successful
litigant has acquired certain rights on the basis of the judgment under challenge.
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.
10. We find that sufficient time is taken in the decision-making process by the
State. 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 statement as made in the application.
11. It is apparent from the record of the case that in the instant case, there is huge
delay of 284 days in filing the present appeal and no sufficient cause for such huge
delay, supported by relevant documents, has been established. In this case, it is
difficult to fathom any logic or rationale which can impel this court to condone the
delay after holding the same to be justifiable. Therefore, in the considered opinion of
this Court, such huge delay cannot be condoned.
12. Hence, the application filed by the appellants/State under Section 5 of the
Limitation Act being CAN 1 of 2024 is dismissed. Resultantly, the appeal filed by the
appellants is also dismissed as time barred.
13. There will be no order as to costs.
14. Urgent Photostat certified copy of this order, if applied for, be given to the
parties on payment of requisite fees.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
