Page No.# 1/8 vs Jugal Chandra Saikia And Ors
2022 Latest Caselaw 3242 Gua

                                                         Page No.# 1/8

GAHC010077542019




                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


          I.A.(Civil)/589/2022

         REKHAMONI DEVI AND ORS.
         W/O SRI PRASANTA KAKATI
         RESIDENT OF VILLAGE RAJAGAON
         WARD NO. 1
         PO
         PS AND DIST MORIGAON
         ASSAM 782105

         2: SRI PRASANTA KAKATI
         S/O SRI BALLADEV KAKATI
         RESIDENT OF VILLAGE RAJAGAON
         WARD NO. 1
          PO
          PS AND DIST MORIGAON
         ASSAM 782105

         3: SRI GOBIN MEDHI @ KALITA
         S/O LATE RAGHU KALITA
         RESIDENT OF VILLAGE RAJAGAON
         WARD NO. 1
         PO
         PS AND DIST MORIGAON
         ASSAM 782105

         4: SMTI RUMI KALITA
         W/O SRI NARENDRA KALITA
         RESIDENT OF VILLAGE RAJAGAON
         WARD NO. 1
         PO
         PS AND DIST MORIGAON
         ASSAM 782105

          5: SMTI MUNMI KALITA
                                                      Page No.# 2/8

D/O LATE NARENDRA KALITA
RESIDENT OF VILLAGE RAJAGAON
WARD NO. 1
PO
PS AND DIST MORIGAON
ASSAM 782105

6: SMTI BHANIMA KALITA
D/O LATE NARENDRA KALITA
RESIDENT OF VILLAGE RAJAGAON
WARD NO. 1
PO
PS AND DIST MORIGAON
ASSAM 782105

7: SMTI KUMKUM KALITA
D/O LATE NARENDRA KALITA
RESIDENT OF VILLAGE RAJAGAON
WARD NO. 1
PO
PS AND DIST MORIGAON
ASSAM 782105
VERSUS

JUGAL CHANDRA SAIKIA AND ORS.
S/O LATE KESHARAM SAIKIA RESIDENT OF VILLAGE BAKULGURI
 PO TAMULIGURI
 PS MIKIRBHETA
 DIST MORIGAON
 ASSAM 782105

2:ON THE DEATH OF MEKURI KALITA
 HIS LEGAL HEIRS SHRI HIREN KALITA
S/O LATE MEKURI KALITA
RESIDENT OF VILLAGE RAJAGAON
 PO
 PS AND DIST MORIGAON
ASSAM 782105
 3:SHRI MINTU KALITA
S/O LATE MEKURI KALITA
RESIDENT OF VILLAGE RAJAGAON
 PO
 PS AND DIST MORIGAON
ASSAM 782105
 4:SHRI SARUBHAI KALITA
S/O LATE MEKURI KALITA
RESIDENT OF VILLAGE RAJAGAON
 PO
                                                                           Page No.# 3/8

             PS AND DIST MORIGAON
             ASSAM 782105
             5:SHRI SUNTI KALITA
             S/O LATE MEKURI KALITA
             RESIDENT OF VILLAGE RAJAGAON
             PO
             PS AND DIST MORIGAON
             ASSAM 782105
             6:SMTI RAHILA KALITA
             W/O LATE MEKURI KALITA
             RESIDENT OF VILLAGE RAJAGAON
             PO
             PS AND DIST MORIGAON
             ASSAM 782105
             ------------
             Advocate for : MR. A K PURKAYASTHA
             Advocate for : MR. M DAS appearing for JUGAL CHANDRA SAIKIA AND ORS.



                                      :: BEFORE ::
                       HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                      O R D E R

26.08.2022

Heard Mr. A. Ikbal, learned counsel appearing for the applicants. Also heard Mr. B.D. Deka, learned counsel representing the opposite party.

This is an application under Section 5 of the Limitation Act, 1963 praying for condonation of 452 days of delay in preferring the regular second appeal.

The applicants have already filed a regular second appeal against the judgment and decree passed by the first appellate court. There was a counter claim and the applicants were under the impression that for the said counter claim no separate appeal needs to be filed.

Page No.# 4/8

The other reasons are financial problems and illness of the daughter.

Mr. Deka, while objecting to the prayer for condonation of delay submits that in the name of the other second appeal being RSA/156/2019, the applicants have caused delay in the execution proceeding being T.EX No.12/2019. It is also submitted that by taking a numerous adjournments the decree has not been allowed to be executed.

Mr. Ikbal has relied upon decision of the Supreme Court delivered in Collector (LA) v. Katiji, (1987) 2 SCC 107. In this judgment, it has been held as under:-

3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice -- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

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"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 cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a 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 respected 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. 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 Page No.# 6/8

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 step-motherly 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 be 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.

Per contra, Mr. B.D. Deka has relied upon the decision of the Supreme Court delivered in Maniben Devraj Shah v. Municipal Corpn. of Brihan Page No.# 7/8

Mumbai, (2012) 5 SCC 157. Paragraph 24 of the judgment is quoted as under:-

24. 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. Mr. Deka also relied upon Majji Sannemma @ Sanyasirao vs Reddy Sridevi, reported in 2021 SCC Online SC 1260. Paragraph 20 of this judgment is quoted below:-

20. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is Page No.# 8/8

further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

I have given my anxious considerations to the submissions made by the learned counsel of both sides.

Under the given circumstances of the case, I have decided to agree with Mr. Ikbal on the ground that the delay has been properly explained. I also agreed that the applicants do not stand to gain any advantage by filing the appeal late.

For the aforesaid reasons, the delay is condoned.

The connected appeal shall be registered and listed for admission

hearing on 31st of August, 2022.

Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant