Chattisgarh High Court

Kalawati Gupta vs State Of Chhattisgarh on 7 September, 2022

                                          1

                                                                            NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR

                             Review Petition No.61 of 2018

Kalawati Gupta W/o Late Shri Mudrika Prasad Gupta Aged About 39 Years R/o
Bazar Para Baikunthpur District Koriya Chhattisgarh., District : Koriya
(Baikunthpur), Chhattisgarh                                 ---- Petitioner

                                        Vers
1. State Of Chhattisgarh Through The Secretary Department Of School
   Education Mantralaya , Mahanadi Bhawan Capital Complex Raipur, District
   Raipur Chhattisgarh.
2. District Collector Koriya District Koriya Chhattisgarh.
3. District Education Officer Baikunthpur District Koriya Chhattisgarh., District :
   Koriya (Baikunthpur), Chhattisgarh
4. Principal Government Model Girls Higher Secondary School , Baikunthpur,
   District Koriya Chhattisgarh.                         ----Respondents

For Petitioner: Shri Atanu Ghosh, Advocate.

For Respondents/State: Shri RM Solapurkar, G.A accepts notice on behalf of the State/Respondents.

Single Bench: Hon'ble Shri Deepak Kumar Tiwari J Order On Board 07.09.2022

1. With the consent of learned Counsel for both the parties, the matter is

heard finally.

2. This Review Petition has been filed under Section 114 r/w Order 47 Rule 1

CPC to review the order dated 29.11.2016 passed in M.C.C No.880/2016, which

was dismissed being barred by 1095 days of limitation. The said M.C.C was filed

for restoration of W.P. No.2319/2003.

3. Shri Ghosh submits that the Petitioner has wrongly been dismissed from

her services, therefore, she had moved a Writ Petition bearing No.2319/2003 for

her reinstatement, which was dismissed for want of prosecution vide order dated

08.10.2013. He further submits that the said order was not communicated to the

Petitioner and after lapse of a considerable time, when the said fact was brought

to the notice of the Petitioner, she had moved an application for restoration of the

same along with an application for condonation of delay, which was registered as

M.C.C No.880/2016 which came up for hearing on 29.11.2016 and this Court did

not find any substantial cause for condoning the delay of 1095 days in filing the

said M.C.C, therefore, the same was also dismissed. The said order was further

challenged before the Hon'ble Supreme Court in SLP (Civil) No.7224/17 in

which, vide order dated 10.03.2017, liberty was granted to the Petitioner to make

proper application by filing a Review Petition along with proper explanation with a

direction that the High Court may consider the matter on merits. Hence, this

Review Petition has been filed on 08.05.2018 along with an application for

condonation of delay in filing the same.

4. In Smt Sudama Devi vs. Commissioner and others reported in (1983) 2

SCC 1, it was held as under:-

"...........There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner. We would, therefore, set aside the order of the High Court and remand the writ petition to the High Court so that the High Court may dispose it of on merits in accordance with law. We accordingly allow the appeal, set aside the

judgment and order of the High Court and direct that the writ petition may be disposed of by the High Court on merits in accordance with law......"

5. The aforesaid view was followed by this Court in the matter of Smt Jyoti

v/s General Manager, Canara Bank (M.C.C. No.591/2015, decided on

13.12.2016) wherein, it was observed at paras-13 to 16 as under:-

"13. In view of the settled legal position as enunciated by the Supreme Court in Puran Singh (supra) and Smt. Sudama Devi (supra), it is not permissible to argue to the contrary that provisions of the CPC or the Act, 1963 would apply in proceedings under Article 226 of the Constitution of India. By the same analogy, if these two enactments do not apply in the parent proceedings under Article 226, any application in the nature of restoration or review or modification of any order passed in exercise of power under Article 226 & 227 of the Constitution of India would not be treated to be barred by limitation merely because it is moved beyond the period of 30 days from the date of the order.

14. In a case where the MCC is filed for restoration of writ petition, which was dismissed for want of prosecution or for non compliance of Court order, the provisions contained under Order IX Rule 2 or Rule 4 of the CPC read with Article 122 of the Act, 1963 would not apply, therefore, such MCC is not to be treated as barred by limitation even if it is filed after 30 days from the date of order, however, in view of the observations made by the Supreme Court in para 10 of the judgment rendered in Puran Singh (supra), the High Court may take note of the period prescribed under Article 122 of the Act, 1963 for considering as to what shall be reasonable time for moving such restoration application or review petition or application for modification/clarification.

15. When such application is filed after long lapse of time, which, prima facie, appears to be unreasonable, it would be the duty of the applicant to explain the delay in filing the restoration application or review petition or application for modification/clarification itself,

however, no separate application may be necessary unless the Court desires such application to be filed.

16. This order shall also not be taken to lay down the principle that Court can never dismiss such application on the ground of delay and laches because if the principles of delay and laches shall apply to the parent proceedings under Article 226 & 227 of the Constitution of India it would also apply to the incidental proceedings like restoration application, review petition or the application for modification/clarification and the writ Court can always invoke its inherent powers to dismiss such applications being suffered from delay and laches in the given set of facts and circumstances of the case."

6. The Petitioner has approached this Court for redressal of her grievance by

way of a Writ Petition, which was dismissed for want of prosecution and later on,

an application for restoring the same was filed with a delay of 1095 days along

with an application for condonation and the said application i.e. M.C.C

No.880/2016 was dismissed on 29.11.2016.

7. In the matter of Sangram Singh vs. Election Tribunal reported in [(1955) 2

SCR 1: AIR 1995 SC 425], it was observed in paras-16 & 17 as under:-

"16. Now a code of procedure must be regarded as such. It is 'procedure', something, designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.

17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and should not continue in their

absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

8. Learned Counsel for the Petitioner submits that some delay occurred in

filing the present Review Petition as the Petitioner had approached the Hon'ble

Supreme Court to challenge the order dated 29.11.2016 passed in M.C.C

No.880/2016, therefore, the delay caused is bona fide and the same may be

condoned.

9. On due consideration, this Court finds substance in the submissions of

learned Counsel for the Petitioner. Accordingly, the delay in filing the Review

Petition deserves to be and is hereby condoned.

10. It may be noted that the issue involved herein may affect the life of a

citizen i.e. the Petitioner, who is a widow belonging to a weaker section of the

society. It is stated in the Review Petition that the said mistake occurred on

account of the negligence on the part of the Counsel for which, the Petitioner