The State Of Manipur Represented ... vs Shri Gurumayum Sanayaima Sharma
2023 Latest Caselaw 113 Mani

SHAMURAILATPAM                Digitally signed by
                              SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA                 Date: 2023.03.15 13:58:42 +05'30'
                                                                  Page |1


                 IN THE HIGH COURT OF MANIPUR
                           AT IMPHAL

                          MC(WA) No. 17 of 2023
                          Ref:- WA No.  of 2023


         1. The      State    of         Manipur   represented    by   the
             Commissioner of Education (S), Government of
             Manipur, Manipur Secretariat, P.O. & P.S. Imphal,
             Imphal West District, Manipur- 795001.

         2. The Director of Education (S), Government of Manipur,
             having its office at Lamphelpat, P.O. & P.S. Lamphel,
             Imphal Wet District, Manipur - 795004.
                                                          ......Applicants
                                    -Versus-

         1. Shri Gurumayum Sanayaima Sharma, aged about 58
             years, S/o (L) G. Radhamohon Sharma, a resident of
             Kontha Ahallup Mamang Leikai, P.O. Mantripukhri,
             P.S. Heingang, Imphal East District, Manipur.
                                                        .......Respondent

BEFORE HON'BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the Applicants :: Mrs. Ch. Sundari, GA

For the Respondents :: Mrs. G. Pushpa, Advocate

Date of Hearing and reserving Judgment & Order :: 27.02.2023

Date of Judgment & Order :: 13.03.2023

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |2

JUDGMENT AND ORDER (CAV) (M.V. Muralidaran, Acting CJ)

Heard Mrs. Ch. Sundari, learned Government

Advocate for the applicants and Mrs. G. Pushpa, the learned

counsel for the first respondent.

2. This petition has been filed by the petitioners under

Section 5 of the Limitation Act read with Rule 3(2) of Chapter IV-

A as well as Rule 2 of Chapter-VII of the High Court of Manipur

Rules, 2019 to condone the delay of 41 days in filing the writ

appeal against the order dated 6.6.2022 made in WP(C) No.34

of 2020.

3. Mrs. Ch. Sundari, the learned Government

Advocate submitted that as against the order dated 6.6.2022

passed in WP (C) No.34 of 2020, the petitioners have filed writ

appeal along with delay condonation petition and after condoning

the delay, the writ appeal was numbered as W.A.No.117 of

2022.When the writ appeal was listed on 24.1.2023, the learned

Government counsel, finding some technical defect in the memo

of appeal, sought permission of this Court to withdraw the writ

appeal with liberty to file a fresh appeal. Accepting the prayer of

the Government counsel, this Court dismissed W.A.No.117 of

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |3

2022 with liberty as prayed for by the petitioners. He would

submit that after obtaining the certified copy of the order passed

in the writ petition, the petitioners have filed fresh writ appeal with

a delay of 41 days excluding the time taken in pursuing

W.A.No.117 of 2022.

4. The learned Government Advocate further

submitted that the delay of 41 days is neither wilful nor wanton.

Further, the Court should take a lenient view as the State

represents collective cause of the community and if the delay is

condoned and the appeal is numbered, no prejudice would be

caused to the private respondent and on the other hand, if the

delay is not condoned, the petitioners would be put to irreparable

loss and damage. Thus, a prayer has been made to condone

the delay of 41 days in filing the writ appeal.

5. Per contra, Mrs. G. Pushpa, the learned counsel for

the respondent submitted that the total number of days as per

the petition is 41 days and the same being wrong and not

admissible as per the order dated 24.1.2023 passed by this Court

in W.A.No.117 of 2022. He would submit that the mistakes

committed due to the carelessness and inadvertency of the

counsel for the petitioners has caused irreparable loss to the

respondent who is a retired Government employee of the

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |4

Government of Manipur and who has been discriminated by the

inaction of the Government without making any payment of his

monthly salary since the year 2016 and the arrear salary since

the year 2012 and the same is still continuing.

6. The learned counsel for the respondent further

submitted that only this time with respect to the order dated

6.6.2022 passed in W.P.(C) No.34 of 2020, the petitioners have

preferred the appeal to deny the rights and liabilities accrued to

the respondent by suppressing the factum of the order dated

11.3.2019 passed in W.P.(C) No.847 of 2018 against which no

appeal has been preferred and allowed to attain finality. The

process of filing the instant writ appeal is only to delay the matter

of the respondent with an ill intention to make him suffer more.

Thus, a prayer has been made to dismiss the petition.

7. We have considered the rival submissions and also

perused the materials available on record.

8. The respondent herein has filed W.P.(C) No.34 of

2020 to set aside the order dated 4.11.2019 passed by the

Director, Education(S), Government of Manipur and also the

order dated 9.12.2019 passed by the Commissioner,

Education(S), Government of Manipur and to implement the

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |5

order passed in W.P.(C) No.847 of 2018. After hearing both

sides, the learned Single Judge, by the order dated 6.6.2022,

allowed the writ petition.

9. There is no dispute that as against the order dated

6.6.2022 passed in W.P.(C) No.34 of 2020, the State

Government has preferred writ appeal with application to

condone the delay. After condoning the delay by this Court, the

appeal has been numbered as W.A.No.117 of 2022. When the

writ appeal was listed on 24.1.2023, the learned State counsel

sought permission of the Court to withdraw the writ appeal with

liberty to file a fresh one. By the order dated 24.1.2023,

W.A.No.117 of 2022 came to be dismissed as withdrawn with

liberty as prayed for by the petitioners. Thereafter, the petitioners

have filed the fresh writ appeal with an application to condone

the admitted delay of 41 days in filing the writ appeal.

10. According to the learned Government Advocate,

the total delay from the date of order in the writ petition till the

filing of the present appeal comes to 234 days and after

deducting the statutory period of 30 days and the time taken in

pursuing W.A.No.117 of 2022 i.e. 160 days and also 3 days' time

taken for obtaining the certified copy of the order, there is a delay

of 41 days and such a shorter delay is neither wilful nor wanton.

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |6

11. The respondent stated that W.A.No.117 of 2022

was pending before this Court till 24.1.2023 though the same was

filed on 17.8.2022. In fact, W.A.No.117 of 2022 was filed with a

delay of more than 5 months and the time spent in pursuing

W.A.No.117 of 2022 cannot be excluded.

12. The point that arises for consideration is whether

the time taken in pursuing W.A.No.117 of 2022 is to be excluded

or not while computing the delay. As stated supra, W.A.No.117

of 2022 has been filed against the order dated 6.6.2022 passed

in W.P.(C) No.34 of 2020 with a delay of 33 days and the said

delay was condoned by this Court by the order dated 21.11.2022

in MC (WA) No.152 of 2022. After numbering the writ appeal,

finding some technical defects in the memo of appeal, the State

counsel, on instructions, withdrawn the appeal with liberty to file

a fresh appeal. For proper appreciation, the order dated

24.1.2023 passed in W.A.No.117 of 2022 is quoted hereunder:

"Ms. G. Pushpa, learned counsel, appears for the respondent in the appeal as well as in the miscellaneous case.

            Ms.    Ch.    Sundari, learned    Government
            Advocate,         appearing       for      the
            appellants/applicants,    seeks    leave    to

withdraw the appeal and miscellaneous case

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |7

reserving liberty to the appellants/applicants to file an appeal afresh with a miscellaneous case in accordance with due procedure.

Leave granted.

WA No.117 of 2022 and MC (WA) No.198 of 2022 are accordingly dismissed as withdrawn with the liberty aforestated.

No order as to costs."

13. It appears that the petitioners have applied the

certified copy of the order on 24.1.2023 and after obtaining the

certified copy, filed the writ appeal on 27.1.2023. Since

W.A.No.117 of 2022 has been preferred against the order dated

6.6.2022 passed in W.P.(C) No.34 of 2020 and was kept pending

for nearly 160 days, there is no hard and fast rule to deny the

exclusion of the time taken in pursuing W.A.No.117 of 2022 as

prayed for by the petitioners. This Court also while permitting to

withdraw W.A.No.117 of 2022, granted liberty to the petitioners

to file a fresh writ appeal. In such scenario, the cause for the

delay of 41 days, after deducting the period spent in pursuing

W.A.No.117 of 2022, shown by the petitioners is satisfactory and

such delay of 41 is not deliberate and wanton and only on bona

fide reasons.In the facts and circumstances of the present case,

the time spent in pursuing the W.A.No.117 of 2022 is to be taken

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |8

as "sufficient cause" for condoning the delay in filing the writ

appeal.

14. The expression "sufficient cause" in Section 5 of the

Limitation Act must receive a liberal construction so as to

advance substantial justice and generally delays be condoned in

the interest of justice where gross negligence or deliberate

inaction or lack of bona fides is not imputable to the party seeking

condonation of delay. Law of limitation has been enacted to serve

the interests of justice and not to defeat it.

15. In N.Balakrishnan v. M.Krishnamurthy, (1998) 7

SCC 123, the Hon'ble Supreme Court held that length of delay is

no matter, acceptability of explanation is the only criterion. Thus,

the acceptability of explanation for the delay is the sole criterion

and length of delay is not relevant, in the absence of anything

showing mala fide or deliberate delay as a dilatory tactic, the

Court should condone the delay.

16. It is well settled that Section 5 of the Limitation Act

gives the Court a discretion which in respect of jurisdiction is to

be exercised in the way in which judicial power and discretion

ought to be exercised upon principles which are well understood;

the words 'sufficient cause' receiving a liberal construction so as

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 Page |9

to advance substantial justice when no negligence nor inaction

nor want of bona fide is imputable to the appellant.

17. The delaying tactics stated by the respondent

against the petitioners is that they have challenged the order

dated 6.6.2022 passed in W.P.(C) No.34 of 2020 alone and no

appeal against the order dated 11.3.2019 passed in W.P.(C)

No.847 of 2018 has been preferred. Thus, the process for filing

the present writ appeal is only to delay the matter of the

respondent with an ill intention to make him suffer more cannot

be countenanced.

18. We are convinced that when the substantial justice

is pitted against the technical consideration, then substantial

justice deserves to be given preference over the latter, which

cannot claim to have vested injustice to be done because of non-

deliberate delay, in particular. Thus, in the present facts and

circumstances of the case, it can be safely presumed that the

petitioners had considerable and sufficient reasons for the delay,

in filing the writ appeal.

19. That apart, the approach of the Court should be

liberal, pragmatic, justice-oriented and non-pedantic, while

dealing with an application for condonation of delay. Applying

MC(WA) No. 17 of 2023 Ref:- WA No. of 2023 P a g e | 10

the principles laid down by the Hon'ble Supreme Court, we are

of the view that the cause for the delay has been sufficiently

explained by the petitioners and we have satisfied with the

reasons for the delay.

20. Admittedly, refusal to condone the delay would

result foreclosing a suitor from putting forth his cause and there

is no presumption that delay in approaching the Court is always

deliberate. Therefore, if the delay is condoned and the writ

appeal is numbered, no prejudice would be caused to the

respondent. On the other hand, if the delay of 41 days after

exclusion of the period spent in pursuing W.A.No.117 of 2022 or

total 234 days is not condoned, the petitioners would be put to

irreparable loss.

21. For the foregoing reasons, MC (WA) No.17 of 2023

is allowed and the delay of 41 days in filing the writ appeal against

the order dated 6.6.2022 passed in W.P.(C) No.34 of 2020 is

condoned. The Registry is directed to number the writ appeal, if

it is otherwise in order.

                 JUDGE               ACTING CHIEF JUSTICE

        FR/NFR
      Sushil




MC(WA) No. 17 of 2023
Ref:- WA No. of 2023