Orissa High Court
State Of Odisha vs Dr. Ambuja Satpathy And Another on 2 May, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.806 of 2024
State of Odisha .... Appellant
Ms. Aishwarya Dash, Additional Standing Counsel
-versus-
Dr. Ambuja Satpathy and another .... Respondents
Mr. Manoj Kumar Mishra, Senior Advocate along with
Mr. Dilip Kumar Patnaik, Advocate (for Respondent no.1)
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 02.05.2025
I.A. No.2104 of 2024 and W.A. No.806 of 2024
04. This matter is taken up through Hybrid mode.
2. Admittedly, there is a delay of 495 days in preferring the instant
appeal against the judgment dated 11.10.2022 passed in WPC(OAC)
No.3172 of 2018.
3. At the time of moving the instant application, an opportunity was
given to the contesting respondent to file counter affidavit, which in fact
has been filed in the instant case.
4. Before we proceed to go into nitty-gritty of the averments made in
the instant application for condonation of delay, in pursuit of
ascertaining whether sufficient cause is made out, it would be apposite
to recapitulate the law in relation to the exercise of power by the Court
while condoning the delay.
5. It admits no ambiguity that Section 5 of the Limitation Act, 1963
bestowed power upon the Courts to condone the delay in preferring an
appeal, review, application, for which the limitation period is provided.
However, for recording the satisfaction on the existence of sufficient
cause, which is of paramount consideration, there are catena of
decisions rendered by the different Courts including the High Courts
that the length of delay is immaterial; but what is sine qua non is the
sufficiency of cause. The delay of a shorter period may not deserve to
be condoned in absence of any "sufficient cause" shown in the
application, whereas the delay of longer period may be condoned if the
Court is satisfied that the circumstances which necessitated delay in
filing the appeal was beyond the control of the litigant.
6. We are not unmindful of the fact that there has been several
judgments condoning the delay of longer period, yet there are catena of
decisions where delay of shorter period was not condoned. In order to
cull out the ratio of the judgment, it is the ardent duty of the Court to
consider the facts involved therein as the ratio cannot be dissected from
the context in which the law has been decided. A little difference in fact
or an additional fact may invite a diametrically opposite decision and,
therefore, it is imperative on the Court while relying on a decision
rendered on the point to find the parity of facts or the special facts
emanating therefrom.
7. The judgment of the Apex Court rendered in State of Manipur and
others vs. Koting Lamkang, (2019) 10 SCC 408 has been relied upon by
the appellant, for the proposition that the Court should avoid the
injustice to be perpetrated upon the State and may condone the delay by
balancing the rights of the parties upon imposition of costs. In the said
report, there was a delay of 312 days in preferring regular first appeal
against decree passed for eviction of the Director General of Police and
the Commandant of 8th Battalion of the Manipur Rifles in respect of the
property which was situated in an area of strategic importance. The
appellant therein approached the wrong forum and invested 44 days in
pursuing the same which was also taken into consideration by the Apex
Court in bringing within the ambit of "sufficient cause" appearing under
Section 5 of the Limitation Act. On the conspectus of facts emerged
from the said report, the Apex Court taking into account that the
property is situated in an area of strategic importance and in the event a
right of appeal is denied on the anvil of limitation, it has a larger
impact. Precisely for such reason, the Court allowed the application for
condonation solely on the ground that the property was situated in the
strategically sensitive area involving the security of the country at large,
which would be evident from the following observation:-
"10. In the present matter, the delay to the extent of 44 days,
in moving before the wrong court was found to be
satisfactorily explained in the impugned judgment. As regards
the failure of the State to adequately explain the remaining
period of delay, our opinion is that the interest of justice would
be better served, if the appellants' challenge to the decree of
the trial court is allowed to be examined on merit, by the first
appellate court. If the merit of the defendant's RFA is not
permitted to be examined by the appellate court, the State will
have no opportunity to address their grievances before a
higher court. We may also observe that if consideration of the
RFA is not permitted on strategically sensitive case involving
security, in the ultimate analysis, the public interest is likely to
suffer. The first appeal should therefore be considered on
merit instead of the State being non-suited, on the ground of
delay."
8. It is no longer res integra that the Court while considering whether
a case of such nature is made out which would come within the ambit of
the expression "sufficient cause" taking into account the other relevant
factors including the larger impact that would cause on the vast section
of the society, the discretion may be exercised in condoning the delay.
The sufficiency of the cause cannot be squeezed within the
straightjacket formula nor should be used as an euclid's theorem, but
depends upon the nature of the explanation so offered and satisfaction
of the Court in constituting the sufficiency of cause.
9. In the recent judgment rendered in Pathapati Subba Reddy (Died)
by L.Rs. and others vs. The Special Deputy Collector (LA), 2024 INSC
286, the Apex Court highlighted the importance of Section 3 of the
Limitation Act in juxtaposition with the provisions contained under
Section 5 of the said Act. It is highlighted that in order to take a
decision under Section 5 of the said Act, the Court must also bear in
mind the necessity of incorporating Section 3 thereof. The Apex Court
held that both the sections should be harmonized in order to operate in
tandem and none of the aforesaid provisions should be permitted to
override the core of each other. The moment there is a delay in filing
the appeal, Section 3 of the Limitation Act is immediately attracted
although the power is conferred upon the Court to condone the delay by
invoking the powers enshrined in Section 5 of the said Act, subject,
however, to the sufficiency of the cause duly shown in the application
by the appellant. The enlightening observations from the above report,
is quoted as under:-
"26. On a harmonious consideration of the provisions of the
law, as aforesaid, and the law laid down by this Court, it is
evident that:
(i) Law of limitation is based upon public policy that there
should be an end to litigation by forfeiting the right to
remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or
availed of for a long time must come to an end or cease to
exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be construed
in a strict sense whereas Section 5 has to be construed
liberally;
(iv) In order to advance substantial justice, though liberal
approach, justice-oriented approach or cause of substantial
justice may be kept in mind but the same cannot be used to
defeat the substantial law of limitation contained in Section
3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone
the delay if sufficient cause had been explained, but that
exercise of power is discretionary in nature and may not be
exercised even if sufficient cause is established for various
factors such as, where there is inordinate delay, negligence
and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it
does not mean that others are also entitled to the same
benefit if the court is not satisfied with the cause shown for
the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and
(viii) Delay condonation application has to be decided on
the parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions have
been imposed, tantamounts to disregarding the statutory
provision."
10. There is no hard and fast rule that the Court should look into the
merit at the time of consideration of the application for condonation of
delay as the meritorious matter should not be nipped in the bud at the
anvil of the Limitation Act. Any such consideration would not only
offends the provision contained under Section 3 of the Limitation Act
but would also be impliedly overridden by Section 5 thereof. The canon
of interpretation of the statutory provision does not permit any
provision of the Act to be submerged by the other provision, but all the
provisions have to be interpreted in a harmonious manner to render it
workable rather than to make it otiose or redundant. It is the duty of the
Court to harmonize different sections appearing in the statute keeping in
mind the legislative intent underlying such incorporation and the
interpretation which would frustrate such intention should be avoided.
11. Keeping in mind the aforesaid broad principles of law emanating
from the aforementioned report, let us examine from the pleading made
in the said application filed by the appellant, whether any case of
sufficient cause is made out. The application for condonation of delay
proceeds simplicitor in its opening paragraph that the said appeal is
filed against the judgment dated 11.10.2022 passed by the Single Bench
in WPC (OAC) No. 3172 of 2018. Thereafter, it is pleaded that the copy
of the said judgment was received by the department on 14.10.2022
from the Office of the learned Advocate General, Odisha and after
perusal of the order, the deponent of the said application was of the
view that the said judgment dated 11.10.2022 needs some clarification
and caused a letter dated 20.10.2022 to the Law Department for
forming an opinion in this regard. In paragraph-5 of the said
application, it is stated that the Law Department in detailed letter dated
19.12.2022 communicated the decision of challenging the said
judgment dated 11.10.2022 before the Division Bench. But,
interestingly, despite the opinion expressed by the Law Department to
prefer an appeal, the deponent of the said application could collect all
the relevant documents and forward the same to the Office of the
learned Advocate General, Odisha on 02.06.2023.
12. What emerged from the aforesaid pleading is that though the
deponent after perusal of the impugned judgment was of the view that
some clarification is required and immediately forwarded the same to
the Law Department for taking an opinion, there has been a
considerable delay of nearly two months in the Office of the Law
Department to take a decision whether the appeal against the impugned
judgment should be filed or not. There is a complete lack of any
explanation for the delay of two months in the said application. The
Law Department of the Government is manned by a person who has a
legal expertise or knowledge of law and it is inconceivable and
improbable that two months period would be consumed to form an
opinion when the period of limitation for preferring an appeal is well
within the knowledge of such person having a legal acumen.
Interestingly, after the opinion was expressed, yet more than six months
were consumed for collecting the papers and forwarding the same to the
Office of the learned Advocate General of Odisha to prefer an appeal. It
is not a case that the appellant did not contest the writ petition before
the Single Bench and was, therefore, well aware of the stand taken by
the respondent as well as the appellant before the Single Bench.
13. Since there is no responsibility fixed upon the officers manning the
different departments of the Government, the casual way of dealing the
matter is evident and apparent from the aforesaid pleading. Despite the
fact that the State has felt aggrieved by the order, it cannot be treated
differently nor can be regarded as a privileged litigant for the purpose of
condonation of delay. Even if immobility in the Government
Department are well known as the file takes longer time to travel from
one desk to another, yet it does not take away the application of the law
which puts fetter in the event there has been a considerable unexplained
delay in preferring an appeal. Since the explanation offered in the
instant application is not satisfactory and there is a carelessness and
lethargy attitude attributable conduct of the State, which does not
satisfy the necessary ingredients of "sufficient cause" for the purpose of
condonation of delay.
14. The Interlocutory Application is, thus, dismissed. Consequently, the
writ appeal is dismissed being barred by limitation. No costs.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Aswini
Designation: Personal Assistant
Date: 06-May-2025 20:33:03
