State Of Odisha vs Sudhakar Barik And Others
2025 Latest Caselaw 167 Ori

Orissa High Court

State Of Odisha vs Sudhakar Barik And Others on 5 May, 2025

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  WA No.971 of 2024
                 State of Odisha                ....     Appellant
                         Mr. Bimbisar Dash, Additional Government Advocate
                                          -versus-
                 Sudhakar Barik and others          ....         Respondents
                           Mr. Budhadev Routray, Senior Advocate along with
                       Mr. Subhadatta Routray, Advocate for Respondent No.1
                                   CORAM:
                       THE HON'BLE THE CHIEF JUSTICE
                                     AND
                 THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
                                          ORDER

Order No.                                05.05.2025
   03.            I.A. No.2543 of 2024

                  This matter is taken up through Hybrid mode.

2. This Interlocutory Application under Section 5 of the Limitation Act for condonation of delay in preferring the instant writ appeal is at the behest of the State of Odisha being aggrieved by the judgment dated 01.06.2023 passed by the Single Bench in W.P.(C) No.12485 of 2019 and batch.

3. Since the period of delay appeared to be inordinate, an opportunity was given to the respondent no.1 to file objection. The objection is on record where the respondent no.1 has in categorical terms stated that the facts pleaded in the application for condonation of delay do not constitute a sufficient cause and there is apparent lapses and/or carelessness attributable to the conduct of the officers, who were at the helm of affairs.

4. Admittedly, there is a delay of 303 days in preferring the instant writ appeal against the judgment dated 01.06.2023 passed by the Single Bench. It is averred in the instant application that the judgment

impugned in the instant writ appeal though passed on 01.06.2023 but was communicated by the Office of the Advocate General on 01.07.2023 containing an opinion of the learned Advocate General obviously to prefer an appeal. Immediately after receipt of the judgment along with opinion of the learned Advocate General, the Legal Section of the Administrative Department took steps to process the same on 08.08.2023 and immediately the contact to the Office of the learned Advocate General was made on 19.08.2023 for preparation of an appeal. Several round of discussions were held between the concerned Law Officers and the learned Advocate General and ultimately certain documents were required to be collected and the Law Officer was instructed to scrutinize and prepare the grounds of appeal to be perused and vetted by the learned Advocate General which in fact consumed considerable time and ultimately after the approval of the learned Advocate General, the appeal was filed but beyond the period of limitation provided therefor.

5. Mr. Budhadev Routrary, learned Senior Advocate appearing for respondent no.1 vehemently opposes the application on the ground that while considering an application for condonation of delay the Court should not overlook the mandate given under Section 3 of the Limitation Act. He strenuously argues that though the Court in catena of decisions unequivocally stated that the Court must adopt pragmatic approach in considering the application under Section 5 of the Limitation Act, but the Court should not absolve its responsibility to uphold the statutory mandate and must strike a balance between Section 3 and Section 5 of the said Act. He thus submits that the application deserves to be dismissed.

6. From the sequel of events, as narrated hereinabove, the first and foremost thing the Court should consider is whether any negligent

and/or carelessness in dealing with the matter can be attributable to the conduct of the appellant which would disentitle the litigant to have the delay condoned. The facts as narrated above, appear that the moment the judgment was communicated to the Department the steps within the reasonable time as expected from the functioning of the Government Department was taken and once the entire matter was entrusted to the learned Advocate General, unless complete advice is given and the memorandum of appeal is approved by him, the authorities cannot proceed and file the appeal. It appears that several rounds of consultations were held with the Law Officers of the Department by the learned Advocate General. Ultimately, after collation of the several documents relevant for the purpose of drafting the appeal were collected, the appeal was drafted and ultimately approved by the learned Advocate General. The entire exercise took a considerable period of time, which according to the appellant has been sufficiently explained.

7. We are not unmindful of some settled proposition of law that the length of delay is immaterial under Section 5 of the Limitation Act, but what is material is the sufficiency of the cause. The delay of shorter period may not be condoned in absence of any sufficient cause shown by the litigant, whereas the delay of longer period deserves to be allowed if the Court is convinced that the circumstances so disclosed prevented the appellant to file the appeal within the period of limitation. Though the Government is not a privileged litigant, yet because of lack of responsibility to be fixed on the officers for their carelessness or delayed decisions, there occurs delay and, therefore, the Court has to take a holistic view keeping in mind the peculiarity of the characteristic in functioning of the Government Department. Apart from the same, the

litigant, who has reposed confidence on the lawyer, should not suffer for any lapses or the delay committed by the lawyer in this regard.

8. In the instant case, the major portion of the delay is because of the various discussions and/or collection of the documents for recording the satisfaction by the learned Advocate General and, therefore, it cannot be said that the appellant was absolutely negligent and lethargic from taking decision and/or action in filing the appeal.

9. We are further conscious that while condoning the delay the Court may strike a balance between the rights of the parties and there is some negligence attributable to the conduct of the litigant which was beyond his control and can be compensated by imposing suitable costs.

10. As indicated hereinabove, the delay was beyond the control though there appears to be some default on the part of the appellant to which we condone the delay of 303 days in preferring the writ appeal subject to costs of Rs.50,000/- (rupees fifty thousand) to be deposited by the appellant-State with the High Court Bar Association Advocates' Welfare Fund, Cuttack within four weeks from date.

11. Accordingly, I.A. stands disposed of.

12. List this matter on 1st July, 2025 for hearing.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge MRS/Laxmikant

Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2025 18:53:49