Madhya Pradesh High Court
The State Of Madhya Pradesh vs Late Shri Uttam Singh S/O Late Shri Nathu ... on 28 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV
ON THE 28th OF FEBRUARY, 2024
SECOND APPEAL NO.947 OF 2021
BETWEEN:-
STATE OF M.P. THROUGH THE
COLLECTOR DISTRICT GWALIOR,
MADHYA PRADESH
........APPELLANT
(BY SHRI G.K. AGRAWAL - GOVERNMENT ADVOCATE)
AND
LATE SHRI UTTAM SINGH S/O LATE SHRI
NATHU SINGH, DIED THROUGH LRS
1. SMT. GANGA DEVI W/O LATE SHRI
UTTAM SINGH AGED 65 YEARS,
OCCUPATION KASTKARI,
2. MAHENDRA SINGH S/O LATE SHRI
UTTAM SINGH, AGE 34 YEARS,
OCCUPATION KASTKARI
3. KRISHNA SINGH S/O LATE SHRI UTTAM
SINGH AGE 29 YEARS, OCCUPATION
KASTKARI, LRS. NO.1 TO 3 ARE
RESIDENT OF VILLAGE SIROLE
DISTRICT GWALIOR, (MADHYA
PRADESH)
4. SMT. SHEELA DEVI W/O SHRI MUNSI
SINGH, D/O LATE SHRI UTTAM SINGH,
AGE 44 YEARS, R/O VILLAGE BEDA,
DISTRICT MORENA, MADHYA PRADESH
5. SMT. GUDDI W/O SHRI SULTAN SINGH,
D/O LATE SHRI UTTAM SINGH, AGE 37
YEARS, R/O VILLAGE GORAMI DISTRICT
BHIND, MADHYA PRADESH
6. SMT. VIMLA W/O SHRI RAMDHAN D/O
2
LATE SHRI UTTAM SINGH, AGE 32 YEARS,
R/O BANMORE DISTRICT MORENA,
MADHYA PRADESH
7. SMT. LAXMI, W/O SHRI BANTI SINGH D/O
LATE SHRI UTTAM SINGH, AGE 27 YEARS,
R/O VILLAGE AMROL DISTRICT
MORENA, MADHYA PRADESH
........RESPONDENTS
(SHRI MADHU SUDAN SHRIVASTAVA - ADVOCATE FOR RESPONDENTS
NO.1, 2, 4, 5, 6 AND 7
SHRI SANJAY KUMAR DWIVEDI - ADVOCATE FOR RESPONDENT NO.3)
----------------------------------------------------------------------------------------------------------
Reserved on : 19th of February, 2024
Pronounced on : 28th of February, 2024
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This appeal having been heard and reserved for orders, coming
on for pronouncement this day. Hon'ble Shri Justice Rajendra Kumar-
IV passed the following:
ORDER
Heard on I.A.No.6280/2023 which has been moved by the State
under Section 5 of Limitation Act with a prayer to condone the delay of
866 days in filing the appeal.
2. Application under Section 5 of Limitation Act is supported by
affidavit of Vinod Kumar Singh, SDM, Jhansi Road, Gwalior who is
Officer-in-Charge in the case.
3. State of M.P. is aggrieved with the order dated 1.12.2017 passed
by learned 5th Additional District Judge, Gwalior in Regular Civil
Appeal No.45A/2016 rejecting the delay condonation application and
appeal as time barred and judgment and decree dated 15.9.1994 passed
by 10th Civil Judge Class 2 Gwalior in Regular Civil Suit
No.245A/1992. Delay condonation application, I.A.No.6280/2023, has
been filed on 27.10.2023 whereas second appeal has been presented by
the State on 19.7.2021, meaning thereby delay condonation application
has been filed after about two years and three months from the date of
filing of appeal.
4. Heard Shri G.K. Agrawal, learned Government Advocate
appearing for State of M.P. and Shri Madhu Sudan Shrivastava, Sanjay
Kumar Dwivedi for respondents and perused the record.
5. Evidently, impugned order of 5 th Additional District Judge,
Gwalior is dated 1.12.2017 passed in Case No.45A/2016 First Appeal
Civil titled as State of M.P. vs. Uttam Singh and this second appeal has
been filed as time barred on 19.7.2021 before this Court. It appears from
the fact that plaintiff/respondent Uttam Singh filed a Civil Suit
No.245A/1992 against the M.P. Government for declaration and
injunction which came to be decided in favour of plaintiff/respondent
vide judgment and order dated 15.9.1994. Defendant/appellant did not
challenge the impugned order of Civil Judge in time. Feeling aggrieved
with the order of 10 th Civil Judge Class-2, Gwalior, M.P. Government
filed First Appeal No.45A/2016 before District Judge, Gwalior in 2016
along with delay condonation application.
6. Appeal No.45A/2016 has been heard by 5 th Additional District
Judge and delay condonation application filed by State of M.P. before
District Judge, Gwalior has been rejected by the impugned order dated
1.12.2017. Despite, present second appeal has been filed in the year
2021. Both the orders dated 15.9.1994 and 1.12.2017 are impugned in
the present second appeal.
7. Learned counsel for the appellant mainly submits as under:
(1) Second appeal has been filed delayed along with the delay
condonation application explaining entire circumstances.
(2) Hon'ble Supreme Court excluded the period of lock-down in
calculation of time in filing the appeal.
(3) Administrative Officers were busy in duty of law and order and
other administrative work, thus it could not be filed in time. Appeal is
not willfully delayed.
(4) Liberal view should be adopted in allowing the delay condonation
application as Government property of more than crores is on stake. If
delay is not condoned it will cause damage to the Government property.
(5) Property of Government is also the public property and due to
fault of the officials in filing the delayed appeal, public should not be
made to suffer.
(6) Respondent is a builder who deals with the property dealing
work.
8. Learned Government Advocate has relied upon the judgments
passed by the Supreme Court in the cases of Executive Officer, Antiyur
Town Panchayat Vs. G. Arumugam (dead) by LRs, 2015 (4) MPLJ 502
and Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji
and others, AIR 1987 SC 1353.
9. Per contra, learned counsel for the respondents, supporting the
impugned order, opposed the delay condonation application and
submits as under:
(*) Plaintiff/respondent filed a suit in the year 1992 against the
Government which was decided in favour of the plaintiff/respondents in
the year 1994.
(*) After elapse of 22 years, defendant/appellant challenged the
decree of Civil Court in time barred appeal before District Judge,
Gwalior.
(*) Appeal came to be heard and decided by 5 th Additional District
Judge, Gwalior in the year 2017 rejecting the delay condonation
application along with the appeal.
(*) State Government again kept mum and after about four years
suddenly it woke up and filed this second appeal as time barred.
(*) Appeal was not filed along with the delay condonation
application while evidently it was time barred. Appeal was filed in the
year 2021 but delay condonation application has been filed in the year
2023.
(*) Administrative Officer was blackmailing the respondents. When
their lust has not been fulfilled, they filed time barred appeal which was
completely in-contravention of established law.
10. Learned counsel for the respondents relied upon the judgments in
State of Madhya Pradesh Vs. Vedvrat Sharma and others, 2023 SCC
OnLine MP 6759, Naresh Babu Annotia Vs. State of Madhya Pradesh
and others (Review Petition No.275/2021).
11. Admittedly appellant, State of M.P., filed a delayed appeal. Delay
condonation application had not been filed along with the appeal when
it was filed.
12. Order 41 Rule 3A of CPC reads as under:
Rule 3A. Application for condonation of
delay.--(1) When an appeal is presented after the
expiry of the period of limitation specified
therefore, it shall be accompanied by an
application supported by affidavit setting forth
the facts on which the appellant relies to satisfy
the Court that he had sufficient cause for not
preferring the appeal within such period.
13. Application under Section 5 of Limitation Act filed by the State
on 27.10.2023 consists of only three paragraphs which are numbered as
3, 4 and 5 and are as follows:
3. That, the second appeal has been
filed the appellant/state being aggrieved by the
judgment and decree dated 01.12.2014 passed by
the learned 5th Additional Session Judge, Gwalior
in regular civil no.45A/2016 whereby judgment
and decree dated 15.09.1994 passed by the
learned Xth civil judge class-II Gwalior in
regular civil suit no.245A/1992.
4. That, these appeal is 866 days delay
in filing the appeal due to the reason that the
appellant/state could not filed appeal against the
judgment and decree dated 01.12.2017 and due
time due to the office incharge being busy with
law and order and other administrative work.
5. That, the delay in filing the second
appeal is neither intentionally nor willfully but
due to the good and sufficient reason shown
hereinabove interest of justice demand that the
present application is allowed and the delay in
filing second appeal is condoned so that the
matter the can be adjudicated upon its merits,
hence same deserves to be condoned. Hon'ble
Apex Court also held in series of the cases that
while condoning the delay, a liberal approach
should be adopted, details of which are given, as
under:-
a. AIR 1996 SC - 1623
b. AIR 1996 SC - 2750
c. 1998(7) SC - 123
d. 2000(9) SCC - 94
e. AIR 2009 SC - 2170
f. Executive Officer, Antiyur Town
Panchayat V/S G. Arumugam reported in
2015(4) MPLJ 502.
14. Application under Section 5 of Limitation Act is supported by
affidavit of Vinod Kumar Singh, SDM, Jhansi Road, Gwalior consisting
of only three paragraphs which read as under:
1. That, I am OIC in the case and as
such I am fully acquitted with the facts of the
case & has got drafted the application in my
instructions.
2. That, the contents of appeal is true &
correct to the best of my personal knowledge and
belief.
3. That, the contents of the application
have been read over by me thoroughly and the
same has been explained to me in hindi by my
counsel.
15. The Supreme Court in Postmaster General and others vs.
Living Media India Limited and another, (2012) 3 SCC 563 has held
as under:
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 bona fides, a liberal concession has to be
adopted to advance substantial justice, we are of
the view that in 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 bona fide 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 red tape 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.
16. The Supreme Court in Collector, Land Acquisition, Anantnag
and another vs. Mst. Katiji and others, AIR 1987 SC 1353 has held
as under:
...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.
17. In Amalendu Kumar Bera and others vs. State of W.B., 2013
(3) MPLJ 1 the Supreme Court has held as under:
9...... There is no dispute that the
expression 'sufficient cause' should be considered
with pragmatism in justice oriented approach
rather than the technical detection of 'sufficient
cause' for explaining every day' delay. However,
it is equally well settled that the Courts albeit
liberally considered the prayer for condonation
of delay but in some cases the Court may refuse
to condone the delay inasmuch as the
Government is not accepted to keep watch
whether the contesting respondent further put the
matter in motion....
18. The Division Bench of M.P. High Court, Gwalior Bench by order
dated 25.03.2021 passed in Review Petition No.275/2021 (Naresh
Babu Annotia vs. State of M.P. and others) has observed as under:
3.2 The Apex Court though in a petition filed
by the State of M.P. [State of Madhya Pradesh
& others Vs. Bherulal (Special Leave Petition
(C) Diary No. 9217, 2020, decided on
15/10/2020] has reiterated the law in regard to
condonation of delay by holding that if the
explanation for seeking condonation of delay is
not reasonable and sufficient then no amount of
sympathy or compassion can come into play to
condone delay. Relevant extract of the said
judgment is reproduced below:-
"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 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:
"12) 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.
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 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.
13) 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. 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."
19. In W.A.No.2333/2023 (The State of M.P. and others vs.
Vedvrat Sharma and others) Court has observed as under:
5. It is, by now, well-settled that it is
not the length of delay but the explanation
offered therefor is to be considered to ascertain
the bona fides and the sufficient cause led to
filing of delayed proceedings. It is also well
settled that before the court of law either private
party or the organization or the State Government
is to be treated at par in the context of
consideration of condonation of delay. Institution
of the nature is not to be given special treatment.
The Hon'ble Apex Court in the case of
University of Delhi Vs. Union of India and
others reported in (2020) 13 SCC 745 has
reinforced the dictum of law in this regard.
Further in Government of Maharashtra (Water
Resources department) Represented by
Executive Engineer Vs. Borse Brothers
Engineers and Contractors Private Limited
reported in (2021) 6 SCC 460, while referring to
the decision in the case of Post Master General
Vs. Living Media (India) Limited (2012) 3
SCC 563 it has been held thus:
"59. Likewise, merely because the
government is involved, a different yardstick for
condonation of delay cannot be laid down. This
was felicitously stated in Postmaster General v.
Living Media (India) Ltd., (2012) 3 SCC 563
["Postmaster General"], as follows:
"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 bona fides, a liberal
concession has to be adopted to advance
substantial justice, we are of the view that in 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 bona fide 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 red tape 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 the
government departments. The law shelters
everyone under the same light and should not be
swirled for the benefit of a few."
60. The decision in Postmaster General (supra)
has been followed in the following subsequent
judgments of this Court:
i) State of Rajasthan v. Bal Kishan Mathur,
(2014) 1 SCC 592 at paragraphs 8-8.2;
ii) State of U.P. v. Amar Nath Yadav, (2014) 2
SCC 422 at paragraphs 2-3;
iii) State of T.N. v. N. Suresh Rajan, (2014) 11
SCC 709 at paragraphs 11-13; and
iv) State of M.P. v. Bherulal, (2020) 10 SCC
654 at paragraphs 3-4.
61. In a recent judgment, namely, State of M.P.
v. Chaitram Maywade, (2020) 10 SCC 667, this
Court referred to Postmaster General (supra), and
held as follows:
1. The State of Madhya Pradesh
continues to do the same thing again and again
and the conduct seems to be incorrigible. The
special leave petition has been filed after a delay
of 588 days. We had an occasion to deal with
such inordinately delayed filing of the appeal by
the State of Madhya Pradesh in State of M.P. v.
Bherulal [State of M.P. v. Bherulal, (2020) 10
SCC 654] in terms of our order dated 15.10.2020.
20. In application for condonation of delay (I.A.No.6280/2023), it has
been submitted that appeal is 866 days delayed due to the reason that
State/Appellant could not file the appeal against the judgment and order
dated 1.12.2017 and because the officer in-charge was busy in law and
order and other administrative works. It has been further stated in the
application that delay in filing second appeal is neither intentionally nor
willfully. Interest of justice demands that present application be
allowed, condoning the delay so that the matter can be adjudicated on
merit.
21. It is true that there was lock-down in the country during the
period from March, 2020 to February, 2022 and if this period is
excluded from the limitation, then too appeal is time barred, although
this ground has not been taken by the State in application for
condonation of delay. It has been submitted by the State that because of
fact that the officials who are working during that period could not
propose to file the appeal, public land cannot be permitted to go to
private persons. With the above submissions, it has been prayed that the
delay deserves to be condoned.
22. The aforesaid evasive submissions reflects the callous attitude of
the appellant/State even if the period of lock-down is excluded then too
more than two years before beginning of the lock-down, State/appellant
was sleeping over the matter. No plausible explanation has been given
by the State/appellant. As such, in view of the facts and circumstances
of the case together with the law enunciated above, I do not find any
sufficient ground to condone the delay of 866 days, as indicated by the
Registry.
23. Looking to the period of delay and casual manner in which the
application has been worded, I am of the view that the application for
condonation of delay is vague and non-specific and it has been filed in a
very casual manner and that too contrary to the provisions of law. The
Court of law assists the vigilant but not the indolent, like the appellant.
24. In view of above fact of the case and legal propositions, no cogent
reason for condoning the delay is found. Delay condonation application
(I.A.No.6280/2023) is rejected. Consequently, second appeal is
accordingly dismissed as time barred.
(RAJENDRA KUMAR-IV)
JUDGE
(alok)
ALOK KUMAR
2024.03.01
13:57:42 +05'30'
