Sikkim High Court
Devi Prasad Sharma vs State Of Sikkim And Ors on 4 September, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
Court No.2
HIGH COURT OF SIKKIM
Record of Proceedings
I.A. No.01 of 2024 in RFA/49/2024 (Filing No.)
DEVI PRASAD SHARMA APPLICANT
VERSUS
STATE OF SIKKIM AND OTHERS RESPONDENTS
Date: 04.09.2024
CORAM: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
For Applicant Mr. N. Rai, Senior Advocate (Legal Aid Counsel).
For Respondents
R-1 to R-5 Mr. S. K. Chettri, Government Advocate.
Mr. Sujan Sunwar, Assistant Government Advocate.
R-6 & R-7 Mr. Karma Thinlay, Senior Advocate.
Mr. Zamyang N. Bhutia, Advocate.
R-8 Respondent No.8 present in person.
ORDER
1. Heard Learned Senior Counsel for the Applicant on I.A.
No.01 of 2024, which is an application under Section 5 of the Limitation
Act, 1963 (hereinafter, the "Limitation Act"), seeking condonation of
118 days' delay in filing the instant Appeal.
2. It is submitted by Learned Senior Counsel that, on 14-09-
2023, the Court of the Learned Principal District Judge, Gangtok,
Sikkim, in Title Suit No.32 of 2022 (Devi Prasad Sharma vs. The State of
Sikkim and Others), pronounced the impugned Order under Order VII
Rule 11 of the Code of Civil Procedure, 1908. The limitation for taking
steps against the impugned Order expired on 13-12-2023. That,
inadvertently instead of approaching this Court by filing a Regular First
Appeal (RFA), a Petition under Article 227 of the Constitution of India
being WP(C) No.01 of 2024 (Devi Prasad Sharma vs. State of Sikkim and
Others), was filed by the Applicant on 03-01-2024. Thereafter, as
advised, the Petition under Article 227 of the Constitution was
withdrawn by the Applicant on 19-03-2024 and the instant RFA filed on
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10-04-2024. That, the delay has occurred on the ground of an
inadvertent error committed by Learned Senior Counsel for the
Applicant on account of which the Applicant ought not to suffer.
Besides, the delay that occurred in filing the Petition under Article 227
of the Constitution and the filing of the instant RFA was due to the
personal unavoidable engagements of Learned Senior Counsel for the
Applicant. That, the Appeal merits a hearing as it involves important
law points. Hence, the delay having been sufficiently explained and the
onus for the delay lying mostly with Learned Senior Counsel for the
Applicant, the delay may be condoned and the application disposed of
accordingly.
3. Learned Government Advocate for the State-Respondents
No.1 to 5 while resisting the arguments of Learned Senior Counsel for
the Applicant seeking condonation of delay submitted that the Applicant
has failed to put forth the "sufficient cause" for not preferring the
Appeal.
4. Objecting to the Petition for delay Learned Senior Counsel
for the Respondents No.6 and 7 submitted that Section 5 of the
Limitation Act requires that the delay should be explained by "sufficient
cause" and placed reliance on the Judgment of the Supreme Court in
Sabarmati Gas Limited vs. Shah Alloys Limited wherein it has been
explained that "sufficient cause" is the cause for which a party could not
be blamed. Therefore, as the delay has not been explained sufficiently,
it cannot be condoned.
5. I have heard Learned Counsel for the parties at length and
given due consideration to the rival arguments advanced. It is evident
that a bona fide mistake occurred on the part of Learned Senior Counsel
(2023) 3 SCC 229
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for the Applicant in pursuing the remedy i.e., instead of an RFA a
Petition under Article 227 of the Constitution came to be filed before
this Court which was subsequently withdrawn. That thereafter, the
delays that have occurred have been candidly explained as one on
account of the engagement of Learned Senior Counsel for the Applicant
and his inability to oversee the preparation of the Appeal on time.
6. On the anvil of the submissions of Learned Counsel for the
parties, it must be pointed out that in G. Ramegowda, Major etc., vs. The
Special Land Acquisition Officer, Bangalore the Supreme Court has held
that the expression "sufficient cause" in Section 5 must receive a liberal
construction so as to advance substantial justice and generally delays in
preferring appeals are required to be condoned in the interest of justice
where no gross negligence or deliberate inaction or lack of bona fides is
imputable to the party seeking condonation of the delay. That apart,
Section 14 of the Limitation Act provides that in computing the period of
limitation for any suit, the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether in a
court of first instance or of appeal or revision, against the defendant
shall be excluded, where the proceeding relates to the same matter in
issue and is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
7. In view of the facts and circumstances placed before me,
admittedly, the delay occurred on account of Learned Senior Counsel for
the Applicant and the delay does not appear to lack in bona fides or is it
due to gross negligence or deliberate inaction. Besides the legal
provisions cited above on this aspect, also favours the Applicant
augmented by the fact that the party ought not to suffer if his Counsel
AIR 1988 SC 897
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has been plagued with problems. The delay having been sufficiently
and satisfactorily explained it is consequently condoned.
8. I.A. No.01 of 2024 stands disposed of accordingly.
9. Register the Appeal.
10. Heard Learned Senior Counsel for the Applicant.
11. Respondents No.1 to 7 are represented by their respective
Learned Counsel; Respondent No.8 present in person.
12. Admit the Appeal.
13. Call for the records from the Learned Trial Court.
14. List on 11-11-2024 as found convenient by the parties.
Judge
04.09.2024
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