Gujarat High Court

State Of Gujarat vs Lajbarkhan Sherdalkhan Pathan on 12 April, 2023

Bench: Sandeep N. Bhatt

     C/SCA/18903/2021                               JUDGMENT DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18903 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                       Sd/-

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1     Whether Reporters of Local Papers may be allowed                   Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                            Yes

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                               STATE OF GUJARAT
                                     Versus
                        LAJBARKHAN SHERDALKHAN PATHAN
==========================================================
Appearance:
MR CHINTAN DAVE, AGP for the Petitioner - State - Original Defendant /
Applicant

MR DEVEN PARIKH, SENIOR ADVOCATE with
MR RUTUL P DESAI, ADVOCATE for the Respondent - Original Plaintiff /
Opponent
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 12/04/2023

                               ORAL JUDGMENT

1. The present petition is filed by the petitioner -

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State - original defendant challenging the impugned order

dated 30.04.2021 passed below Exh.13 in Civil Misc.

Application No.41 of 2021 by the Principal District and

Sessions Judge, Ahmedabad (Rural) at Mirzapur -

Ahmedabad, whereby the appellate Court below has dismissed

the application for condonation of delay of 3230 days

preferred in filing appeal against the judgment dated

03.05.2012 passed in Regular Civil Suit No.50 of 2012 by the

trial Court i.e. 2 nd Additional Senior Civil Judge, Ahmedabad

(Rural) at Mirzapur - Ahmedabad, which is in favour of the

respondent - original plaintiff.

2. The brief facts of the original plaintiff in the suit

leading to this petition are epitomized as under :

2.1 The present respondent - original plaintiff is

possessing the land bearing Survey No.341 situated at

Mouje : Shahvadi, Tal. City, District Ahmedabad,

admeasuring Acre 8 and 22 Guntha before the year 1951 and

his name was shown in the revenue record for the period

from 1961-62 to 1988-89 as Farmer. In the year 1989, the

present petitioner - Government Authority has come at the

place and issued notice to the plaintiff for vacating the said

land within seven days, without following any procedure,

without doing any panchnama and removed some part of the

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hut. Therefore, the plaintiff has preferred Regular Civil Suit

No.705 of 1989 before the competent Civil Court for

declaration and permanent injunction, along with an

application for injunction. Though served, the defendant -

State Authority had chosen not to appear and contest the

said suit. The trial Court has, therefore, allowed the suit ex-

parte and granted permanent injunction vide its judgment

dated 20.08.1993 and directed the defendants - Government

Authorities not to take possession of the land in question

from the plaintiff, without following due process of law. The

said judgment dated 20.08.1993 passed by the trial Court in

Regular Civil Suit No.705 of 1989 has attained finality, as

there was no challenge by the defendant - State Authority

against the same before any higher forum till date.

2.2 The land in question is in possession of the

original plaintiff.

2.3 After about two decades, in the year 2012, the

original plaintiff - present respondent has again filed Regular

Civil Suit No.50 of 2012 before the competent Civil Court

inter alia praying to declare the owner of the land in

question in view of adverse possession since last more than

61 years as well as for permanent injunction. In the said

suit also, though served, none appears for the Government

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authorities and therefore, the trial Court has, vide order

dated 23.03.2012, closed the right of the State and directed

to hear the suit ex-parte. Ultimately, the trial Court has

passed the judgment 03.05.2012 in favour of the original

plaintiff and decreed the suit on 08.05.2012.

2.4 There are various correspondences under the Land

Revenue Code between the parties for vacating the land in

question in the year 2017 to 2020.

2.5 Finally, the present petitioner - State Authority

has preferred an application for condonation of delay being

Civil Misc. Application No.41 of 2021 in preferring the appeal

against the judgment dated 03.05.2012 and decree dated

08.05.2012 passed by the trial Court in Regular Civil Suit

No.50 of 2012 before the appellate Court below. There are

3230 days delay.

2.6 In the said proceedings also, the Government

Authority / Government Pleader has not remained present

and therefore, the rights of the State were closed at each

stage of the proceeding, after giving ample opportunity.

2.7 The appellate Court below has rejected the said

Civil Misc. Application No.41 of 2021 for condonation the

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delay vide impugned order dated 30.04.2021.

2.8 It is this order impugned, which is challenged by

the State Authority before this Court in this petition after

about 9 years.

3. Heard Mr. Chintan Dave, learned Assistant

Government Pleader for the State Authorities - original

defendant/applicant and Mr. Deven Parikh, learned senior

advocate with Mr. Rutul Desai, learned advocate for the

respondent - original plaintiff/opponent at length. Rule.

Learned advocate Mr.Rutul Desai waives service of notice of

rule on behalf of the respondent. With consent of both the

learned advocates, the matter is heard and decided today.

3.1 Mr. Chintan Dave, learned AGP has drawn my

attention towards additional affidavit filed by the petitioner -

State Authority and has submitted that in the year 2012,

there was a revenue distribution of territorial jurisdiction of

Ahmedabad. It came to be divided into two zones; east zone

and west zone. Due to that bifurcation of zones, the

necessary requirement of the establishment of the authorities

separately for each zone has been arisen. He has further

submitted that said bifurcation and relocation of the zones

consumed some time and thereafter, the authorities could

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demarcate and determine the revenue jurisdiction. He has

also submitted that therefore, due to that process of

establishment of the said offices, the records, documents and

all the other connected things were either shifted or were in

process of being sifted and that the same took considerable

time. He has further submitted that in the year 2017, the

Ahmedabad Municipal Corporation has drawn the attention of

the State Government regarding illegal encroachment and

possession over the land in question that the authorities were

made aware regarding the illegal possession of the

respondent. He has submitted that on 20.03.2018, the notices

were issued to the encroachers under Section 61 of the

Bombay Land Revenue Code and the respondent through his

power of attorney filed a reply placing reliance upon the

order passed by the trial Court in Regular Civil Suit No.705

of 1989.

3.2 He has submitted that thereafter on 20.08.2018,

the Mamlatdar had passed an order directing the encroachers

to remove encroachments within a period of seven days. The

respondent has challenged the said order passed by the

Mamlatdar before the Deputy Collector (East) on 16.10.2018

and during that proceeding, the respondent has placed copy

of the judgment and order passed by the trial Court in

another suit being Regular Civil Suit No.50 of 2012. He has

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submitted that with respect to the same prayers as sought in

Regular Civil Suit No.705 of 1989, subsequent suit being

Regular Civil Suit No.50 of 2012 seeking identical prayers

was preferred by the respondent before the trial Court and it

is at this stage that it came to the notice of the authorities

that the order is passed in Regular Civil Suit No.50 of 2012

dated 03.05.2012. He has further submitted that the suit is

filed on 12.05.2001 and the same was decreed on 03.05.2012,

which is something required to be noted by this Court. He

has submitted that on 26.12.2019, communication was

addressed by the authorities to the higher authorities for

permission of the legal department through the revenue

department. The legal department granted sanction to an

appeal against the judgment and decree passed in Regular

Civil Suit No.50 of 2012 on 27.11.2020. Soon after receiving

the sanction, on 06.03.2012, the petitioner has preferred an

application for condonation of delay of 3230 days caused in

preferring the appeal before the appellate Court below, which

the learned appellate Court below has dismissed.

3.3 He has submitted that looking to the entire

chronology of events and the findings recorded by the

appellate Court below, it clearly indicates that the appellate

Court below has not rightly appreciated the facts and

circumstances of the present case as well as the reasons

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given by the present petitioner in the application for

condonation of delay. He has submitted that the delay should

be considered liberally as the appellate Court below has

taken a hyper-technical view in considering the delay, more

particularly, the Court influenced by the length of delay

which is about 9 years, which is not in consonance with the

settled position of law. He has submitted that the appellate

Court below has to consider the cause, more particularly, the

sufficient cause is made out from the application and in the

facts and circumstances of the case, the petitioner has given

satisfactory explanation about the cause for delay occurred in

filing the appeal.

3.4 In support of his submissions, he has relied upon

the decision of Hon'ble Apex Court in the case of Sridevi

Datla versus Union of India reported in (2021) 5 SCC 321, more particularly para 28 thereof. He has submitted that this

petition may be allowed and the delay of 3230 days in

preferring the appeal against the judgment and decree passed

by the trial Court dated 03.05.2012 in Regular Civil Suit

No.50 of 2012 may be condoned.

4.1 Per contra, Mr. Deven Parikh, learned senior

advocate with Mr. Rutul Desai, learned advocate has

submitted by pointing out from the additional affidavit filed

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by the petitioner - State itself that, assuming for the sake of

argument that the State has no knowledge about the

judgment and decree passed by the trial Court, though served

with the notices of the trial Court regarding the suit from

2012 to 2018, but when the State has come to the knowledge

in the year 2018, as stated by them in this additional

affidavit, why they have not preferred an appeal against the

said judgment and decree till the year 2021. He has

submitted that there is no justification for such inaction on

the part of the State Authorities about the cause of delay.

4.2 In support of his submission, he has relied upon

the following decisions of the Hon'ble Apex Court :

(i) 2021 SCC Online Sc 1260 - Majji Sannemma alias Sanyasirao versus Reddy Sridevi (Para : 2, 3, 5, 12 to 14, 18 to 20 and 21)

(ii) 2021 SCC Online SC 384 - State of Odiasha versus Sunanda Mahakuda (Para : 3, 4 and 6)

(iii) (2020) 10 SCC 654 - State of Madhya Pradesh versus Bherulal (Para : 2, 3, 5 to 8)

(iv) (2012) 5 SCC 157 - Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai (Para : 9, 11, 13, 14, 19, 23 to 26 and 29)

4.3 He has submitted that even otherwise also, in the

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application for condonation of delay in preferring the appeal

before the appellate Court below, the Authorities have not

disclosed necessary explanation for cause of delay occurred in

filling the appeal at such belated stage of about more than 9

years. He has submitted that the appellate Court below has

rightly rejected the application of condonation of delay by

giving proper and valid reasons. He has submitted that no

interference is required by this Court under Article 227 of

the Constitution of India. He has submitted that this petition

may be dismissed.

5. This Court is conscious about the fact that this

Court is dealing with the rejection of an application for

condonation of delay of 3230 days in preferring the appeal

before the appellate Court below against the judgment and

decree passed by the trial Court. This Court is also aware

about the scope of interference in the impugned order since

the suit is decreed ex-parte by the trial Court as well as the

order impugned is passed on the application for condonation

of delay in preferring the appeal before the appellate Court

below.

6. Having heard learned advocates for the respective

parties and having gone through the material on record, the

picture which has emerged before this Court is as under :

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6.1 The petitioner is a State Authority, who is the

original defendant in the suit and original applicant in the

delay condonation application.

6.2 The land in question is situated in the City of

Ahmedabad.

6.3 The present respondent - original plaintiff and

opponent in the delay condonation application is possessing

the land in question since more than 61 years indisputably.

6.4.1 When the State Authorities have suddenly removed

some part of his hut situated at the land in question without

following due process of law, he has immediately approached

the competent Civil Court by filing Regular Civil Suit No.705

of 1989 for declaration and permanent injunction.

6.4.2 The State Authorities have not appeared before the

trial Court, though served. The trial Court has no option but

to proceed the suit ex-parte.

6.4.3 The trial Court has allowed the said suit vide

judgment and decree dated 20.08.1993 in favour of the

plaintiff and directed the State Authorities not to take

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possession of the suit land without any due process. The

revenue authority has taken note of it and has mutated the

entry to this effect in the revenue record vide Entry No.2727.

6.4.4 The State Authorities have not challenged the

same before any higher forum in appeal proceedings and

thus, it has attained finality.

6.5.1 After a long period, the plaintiff has again filed

Regular Civil Suit No.50 of 2012 for declaration and

permanent injunction before the competent Civil Court.

6.5.2 In that proceeding also, the State Authority,

though served, has not appeared and contested the suit

proceedings.

6.5.3 The said second suit has also proceeded ex-parte

and the trial Court has granted the said suit vide judgment

dated 03.05.2021 and decree dated 08.05.2012 in favour of

the plaintiff.

6.6 In the meantime, the State Authorities have

started proceedings under the Land Revenue Code to vacate

the land in question. There were various communications

between the parties between the year 2017 to 2020.

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6.7 It is noted that though served with the notices of

the trial Court in both the suit proceedings, the State

Authorities have neither attended the suit proceedings nor

filed their written statement nor produced their evidence

before the trial Court. Therefore, both the suits were heard

and disposed of ex-parte.

6.8 It is required to be observed here that time and

again, the Hon'ble Apex Court has held that the law helps to

those who are awakened for their rights. In the instant case,

the notice issued by the trial Court in first suit being

Regular Civil Suit No.705 of 1989 was served to the State

Authorities. Even though, the State Authorities have not

taken sufficient care to appear and contest the suit

proceedings before the trial Court. The trial Court has,

therefore, no option but to proceed with the suit further. The

trial Court has finally allowed the suit and restrained the

State Authorities to enter into the suit land. The revenue

entry to this effect being Entry No.2727 of 1993 has been

mutated in the revenue record. It is more relevant to note

here that, the State Authorities have not challenged the said

ex-parte judgment and decree by filing an appeal before the

higher forum till date and thus, it has attained finality.

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6.9 Further, on one hand, though the State Authorities

have knowledge about the second suit in the year 2012, as

the notice was served to the State Authorities, it was

thereafter decreed ex-parte as none appeared on behalf of the

State Authorities, on the second hand, the State Authorities

have initiated proceedings under the Land Revenue Code

against the plaintiff in the year 2017, but not challenged the

said ex-parte decree before the appellate Court below in time.

7. From above it transpires that, the State

Authorities have not acted in responsible manner, as can be

seen from the record that though notice was served, they

have not taken sufficient care to represent their case before

the trial Court and further, even to challenge the ex-parte

decree passed in Regular Civil Suit No.705 of 1989 as well

as the decree passed in Regular Civil Suit No.50 of 2012, in

time. Further, it also transpires from the record that, the

State Authorities have not challenged the judgment and

decree passed in Regular Civil Suit No.705 of 1989 till date

and thus, it has attained finality. The State Authorities have

challenged the judgment and decree passed in second Regular

Civil Suit No.50 of 2012 after a long and unsatisfactory

explained the delay of 3230 days. Thus, the petitioner -

State Authorities have not shown sufficient cause to condone

the delay in preferring the appeal before the appellate Court

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below against the year judgment and decree passed in

Regular Civil Suit No.50 of 2012.

8. At this stage, it would be fruitful to refer to the

decisions of the Hon'ble Apex Court, which are relied upon

by learned advocate for the respondent in support of his

submissions, which are as under, in the case of :-

(i) 2021 SCC Online Sc 1260 - Majji Sannemma alias Sanyasirao versus Reddy Sridevi - Para : 2, 3, 5, 12 to 14, 18 to 20 and 21 read as under :

"2. That the appellant herein - original plaintiff filed a civil suit being O.S. No. 40 of 2013 for permanent injunction against the respondents herein

- original defendants. That the Trial Court dismissed the said suit by judgment and decree dated 23.04.2016. That the First Appellate Court allowed the suit by quashing and setting aside the judgment and decree passed by the Trial Court, by judgment and decree dated 01.02.2017. That the original defendants - respondents herein applied for the certified copy of the judgment and order on 04.02.2017. The same was ready for delivery on 10.03.2017. That after a period of approximately 1011 days, the respondents herein - original defendants preferred the Second Appeal before the High Court. Application to condone the delay was also filed being I.A. No.1 of 2021. By the impugned order, the High Court has condoned the

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delay of 1011 days in preferring the Second Appeal, which is the subject matter of appeal before this Court.

3. Learned counsel appearing on behalf of the appellant herein - original plaintiff has vehemently submitted that in the present case, High Court has committed a grave error in condoning huge delay of 1011 days in preferring the appeal.

5. It is further submitted that even while condoning the huge delay of 1011 days, the High Court has also not observed that sufficient cause has been shown explaining the delay of 1011 days in preferring the Second Appeal.

12. At the outset, it is noted that by the impugned order the High Court has condoned a huge delay of 1011 days in preferring the Second Appeal by respondent Nos.1 and 2 herein - original defendants

- appellants before the High Court. While condoning the delay, the High Court has observed as under:

"In these circumstances, when there are certain questions, which require a debate in the second appeal, it is not necessary that this matter be rejected at this stage, without inviting a decision on merits. lf the delay is condoned though enormous, what happens at best is to give an opportunity to the parties to canvass their respective case. Since this question being of procedure, the attempt of the court should be to encourage a healthy discussion on merits than rejecting at threshold.

Viewed from such perspective, accepting the

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reasons assigned by the petitioner, the delay in presenting this second appeal should be condoned.

Apparently, there is no wilful negligence on the part of the petitioners nor this attempt suffers from want of due diligence. It appears being a bonafide attempt on the part of the petitioners to canvass their claim particularly when the trial court had accepted their plea, which was subjected to reversal by the appellate court. However, the petitioners should compensate the respondent by means of costs for this delay. The contention of the respondent that valuable rights are accrued to her on account of inaction of the petitioners in failing to prefer the Second Appeal within time, cannot be a significant factor in the backdrop of the circumstances found in this case.

In the result, this petition is allowed condoning the delay of 1011 days in filing the second appeal subject to payment of costs of Rs.2,000/- (Rupees Two thousand only) to the learned counsel for the respondent on or before 05.10.2021."

13. Thus from the aforesaid, it can be seen that the High Court has not observed that any sufficient cause explaining the huge delay of 1011 days has been made out.

14. The High Court has observed that if the delay is condoned no prejudice will be caused to the appellant as the appeal would be heard on merits. The High Court has also observed that there is no willful negligence on the part of the respondents

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herein nor it suffers from want of due diligence. However, from the averments in the application for condonation of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein - appellants before the High Court in filing such a belated appeal.

18. In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.

19. In the case of Pundlik Jalam Patil (supra), it is observed as under:

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury,

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quickening diligence and preventing oppression. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

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 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.

21. In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help

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those who are vigilant and "do not slumber over their rights"."

(ii) 2021 SCC Online SC 384 - State of Odisha versus Sunanda Mahakuda -

Paras : 3, 4 and 6 read as under :

"3. A reading of the aforesaid shows that there is no reason much less sufficient and cogent reason assigned to explain the delay and the application has also been preferred in a very casual manner. We may notice that there are number of orders of this State Government alone which we have come across where repeatedly matters are being filed beyond the period of limitation prescribed. We have been repeatedly discouraging such endeavours where the Governments seem to think that they can walk in to the Supreme Court any time they feel without any reference to the period of limitation, as if the statutory Law of Limitation does not exist for them.

4. There is no doubt that these are cases including the present one where the Government machinery has acted in a inefficient manner or it is a deliberate endeavour. In either of the two situations, this court ought not to come to the rescue of the petitioner. No doubt, some leeway is given fro Government inefficiency but with the technological advancement now the judicial view prevalent earlier when such facilities were not available has been over taken by the elucidation of the legal principles in the judgment of this Court in the Postmaster General v. Living Media India Ltd. We have discussed these aspects in State of M.P.

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v. Bherulal and thus, see no reason to repeat the same again.

6. The object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say nothing could done because the highest Court has dismissed the appeal. It is mere completion of formality to give a quietus to the litigation and save the skin of the officers who may be at fault by not taking action in prescribed time. If the state government feels that they have suffered losses, then it must fix responsibility on concerned officers for their inaction but that ironically never happens. These matters are preferred on a presumption as if this Court will condone the delay in every case, if the State Government is able tosay something on merits."

(iii) (2020) 10 SCC 654 - State of Madhya Pradesh versus Bherulal - Paras : 2, 3, 5 to 8 read as under:

"2. We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute

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subsists, the appeals/petitions have to be filed as per the Statues prescribed.

3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in

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the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."

Eight years hence the judgment is still unheeded.

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5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for

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wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.

8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner- State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time."

(iv) (2012) 5 SCC 157 - Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai - Paras : 9, 11, 13, 14, 19, 23 to 26 and 29 read as under :

"9. The appellants contested the prayer made by the Corporation for condonation of delay by asserting that the story of misplacement of the papers is unbelievable and is liable to be discarded because the applications for condonation of delay do not mention as to when the misplaced papers were traced out by the concerned department. They also pleaded that the transfer of Shri Ranindra Y. Sirsikar from one section to the other has no bearing on the issue of condonation of delay because the Corporation has employed several advocates and no explanation whatsoever has been offered for not filing the applications for certified

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copies of the judgment of the trial Court till 23.8.2010.

11. Shri A.S. Bhasme, learned counsel for the appellants argued that the reasons assigned by the learned Single Judge for condoning more than 7 years and 3 months delay in filing the appeals are legally unsustainable and the impugned order is liable to be set aside because the explanation given by the Corporation lacked bonafides and was wholly unsatisfactory. Learned counsel emphasized that in the absence of any denial by the Corporation that it has a battery of advocates to deal with the litigation, the transfer of Shri Ranindra Y. Sirsikar in January, 2004 to Miscellaneous Court and, thereafter, to other Courts has no bearing on the issue of delay because the suits filed by the appellants had been decided in May, 2003 and no explanation has been given as to why applications for certified copies could not be filed for 7 years and 5 months.

13. Shri Pallav Shishodia, learned senior counsel appearing for the Corporation argued that the discretion exercised by the learned Single Judge of the High Court to condone the delay does not suffer from any legal infirmity and the mere possibility that this Court may, on a fresh analysis of the pleadings of the parties, form a different opinion does not furnish a valid ground for exercise of power under Article 136 of the Constitution. Shri Shishodia submitted that in last more than two decades the Courts have time and again emphasized that while considering the question of condonation of delay, the pleadings of the parties should be construed liberally and the genuine cause of a party should not be defeated by refusing to condone the delay. In support of his argument, Shri Shishodia

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relied upon the often cited judgments in Collector, Land Acquisition, Anantnag V/s. Mst. Katiji (supra) and State of Nagaland V/s. Lipok AO (supra). Shri Shishodia also pointed out that the appellants had raised illegal construction and if the challenge to the decrees passed by the trial Court was aborted by the High Court by refusing to condone the delay, serious injury would have been caused to the public interest.

14. We have considered the respective arguments / submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

19. In P.K. Ramachandran V/s. State of Kerala, (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.

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23. What needs to be emphasised 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 and other similar statutes, 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 and a lot of time is consumed at various stages of litigation apart from the cost.

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.

25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but 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 plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

26. In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months

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delay was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise of power under Section 5 of the Limitation Act.

29. Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act."

9. The decision, which is relied upon by learned AGP

Mr. Chintan Dave in support of his submissions of the

Hon'ble Apex Court in the case of Sridevi Datla (supra),

more particularly para 28 thereof, which is as under, is not

helpful to the petitioner - State Authorities in the facts and

circumstances of the present case.

"28. It is evident that the term sufficient cause is relative, fact dependent, and has many hues, largely deriving colour from the facts of each case, and the behaviour of the litigant who seeks condonation of delay (in approaching the court). However, what can broadly be said to be universally accepted is that in

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principle, the applicant must display bona fides, should not have been negligent, and the delay occasioned should not be such that condoning it would seriously prejudice the other party."

10. There is no dispute with regard to the proposition

of law enunciated by the Hon'ble Apex Court in the case of

Sridevi Datla (supra), however, looking to the facts and circumstances of the present case as well as considering the

idle approach of the State Authorities, the same will not be

helpful to the petitioner in this case.

11.1 The limitation has got a specific purpose and

object and more specifically to avoid prejudice to the

respective parties. Section 5 of the Limitation Act provides

'sufficient cause' is the only criterion for condoning delay.

'Sufficient Cause' is the cause for which a party could not be

blamed.

11.2 The law is well settled that delay cannot be

condoned as a matter of 'judicial generosity' in any special

case. An order extending time should give sufficient indication

that the discretion given by the law has been judicially

exercised. An Appellate Court will not ordinarily interfere

with the discretion exercised by the Court below. But the

deciding factor is whether the exercise of discretionary power

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is just and proper.

11.3 It is true that each day's delay need not to be

explained but it is enjoined on the petitioner to make out

sufficient cause for not filing the application within the

period of limitation. Uncondonable delay cannot be condoned

in the absence of any valid reason. Unless proper explanation

is offered, the Court cannot exercise its discretion in the

proper perspective to advance substantial justice. It is also

well settled that when a court has exercised its discretionary

power to condone the delay, the appellate Court, in exercise

of its discretion, should not ordinarily interfere with such

decision unless the discretion exercised is arbitrary and

overlooking the interest accrued to another party to the

dispute.

11.4 At the same time, the discretion must not be

exercised in any arbitrary or vague or fanciful manner, but

must be exercised like any other judicial discretion with

vigilance and circumspection. Where delay could have been

avoided by due care and caution, the Court may not exercise

the discretion to condone the delay.

11.5 It is true that "sufficient cause" should receive

liberal construction to do substantial justice. What is

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"sufficient cause" is a question of fact in the given

circumstances of the case. It is true that condonation of

delay is discretion of the Court. Length of delay is no

matter, but acceptability of the explanation is the only

criterion. Thus, the Courts have taken a clear view that the

intention of the parties in filing appeal belatedly after

causing prejudice to the interest of the other parties, then

also the delay cannot be condoned by exercising the power of

discretion. Therefore all these aspects have to be considered.

12.1 Unless and until the appellant gives the sufficient

cause for condonation of delay under Section 5 of the

Limitation Act, is clearly mentioned that when sufficient

cause is not given then the delay cannot be condoned. The

law of limitation is enshrined in the legal maxim ' Interest

Reipublicae Ut Sit Finis Litium' means it is for the general welfare that a period be put to litigation. Rules of limitation

are not meant to destroy the rights of the parties, rather the

idea is that every legal remedy must be kept alive for a

legislatively fixed period of time. However, the Court while

allowing such application of delay has to draw a distinction

between delay and inordinate delay for want of bonafides of

an inaction or negligence would deprive a party of the

protection under the Act. Sufficient cause is a condition

precedent for exercise of discretion by the Court for

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condoning the delay. The Court cannot condoned the delay on

sympathetic grounds alone. Looking to the longer delay as

well as the negligence on the part of the petitioner - State,

the Court cannot be liberal to take it easy in granting

condonation of delay. Looking to the ratio laid down in the

judgment of the Hon'ble Apex Court in case of Lanka Venkateswarlu reported in AIR 2011 SC 1199, wherein it was observed as under :

" Whilst considering applications for condonation of delay under S.5 of the Limitation Act, the Court do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, know to the law. The discretion has to be exercised in any systematic manner informed by reason. Whims or fancies, prejudices or predilections cannot and should not form the basis of exercising discretionary powers."

12.2 In the case of Esha Bhattacharjee Vs. Managing

Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon'ble Supreme Court

of India made an observation as follows:

"15. From the aforesaid authorities the principles that can broadly be culled out are: vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a

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delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

12.3 In this background while considering condonation

of delay, the routine explanation may not be enough but it

has to be in the nature of indicating "sufficient cause" to

justify the delay which will depend on the backdrop of each

case and will have to be weighed carefully by the Court

based on the fact situation. In the case of inordinate delay a strict approach is warranted because "delay defeats equity".

In the present facts and circumstances, sufficient

cause for delay of 3230 days is not borne out.

This Court has no doubt in its mind that there is

willful latches and negligence on the part of the petitioner -

State in defending its right. No error can be found in the

impugned judgment and order. No interference is called for.