Premchand Agarwal vs Nagar Nigam
2021 Latest Caselaw 996 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Writ Petition No. 671 of 2021 (M/S)

Premchand Agarwal                                         .....Petitioner.
                                      Versus
Nagar Nigam, Haridwar                                     .... Respondent
                                       With

                   Writ Petition No. 676 of 2021 (M/S)

Ravindra Kumar                                            .....Petitioner.
                                      Versus
Nagar Nigam, Haridwar                                     .... Respondent
                                       With

                   Writ Petition No. 677 of 2021 (M/S)

Ravindra Kumar                                            .....Petitioner.
                                      Versus
Nagar Nigam, Haridwar                                     .... Respondent
                                       With

                   Writ Petition No. 682 of 2021 (M/S)

Jitendra Kumar                                            .....Petitioner.
                                      Versus
Nagar Nigam, Haridwar                                     .... Respondent
                                       With

                   Writ Petition No. 684 of 2021 (M/S)

Ramesh Chand and others                                   .....Petitioners.
                                      Versus
Nagar Nigam, Haridwar                                     .... Respondent

Present :
Mr. Nikhil Singhal, Advocate for the petitioner.
Mr. Sandeep Kothari, Advocate for the respondents.

                                                     Dated: 18th March, 2021
                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The petitioner, in these five Writ Petitions, have challenged the order dated 27th February, 2021, which has been passed

by the Court of First Additional District Judge, Haridwar, in Misc. Case No. 29 of 2020, which accompanied the Appeal which was preferred by the respondent, as against the judgment and decree, granted in favour of the petitioners in their respective Suits, by decreeing their Suits by the judgement of 12th October, 2015.

2. The facts, which are apparent on record are that :-

A. In Writ Petition No. 671 of 2021, the petitioner is a decree holder, in whose favour the decree was rendered by the learned Trial Court on 12th April, 2015, in Suit No. 278 of 2010. It is this judgment of the Trial Court, which has been put to challenge in the Appeal, accompanying the delay condoantion application, which has been allowed by the impugned order dated 27th February, 2021, which was rendered in Misc. Case No. 29 of 2020.

B. In Writ Petition No. 676 of 2021, the petitioner was a plaintiff of Suit No. 275 of 2010, whereby the Suit of the petitioner was decreed by the judgment dated 12th October, 2015, against which, an Appeal has been preferred by the respondent, which accompanied with it the Misc. Application No. 30 of 2020, under Section 5 of the Limitation Act, which has been allowed by the impugned order dated 27th February, 2021.

C. In Writ Petition No. 677 of 2021, the petitioner is the decree holder of a decree rendered on 12th October, 2015, in Suit No. 277 of 2010, against which, the Appeal was preferred, which was accompanying with it the Misc. Application, which was number as Misc. Case No. 31 of 2020, under Section 5 of the Limitation Act, which has been allowed by the judgement dated 27th February, 2021, impugned in the Writ Petition.

D. In Writ Petition No. 682 of 2021, the petitioner is the decree holder of a judgment and decree which was rendered on 23rd February, 2015, in Original Suit No. 276 of 2010, against which, the respondent had preferred an Appeal, which accompanied with it the Delay Condonation Application, by way of Misc. Application No. 32 of 2020, and by virtue of the impugned order dated 27th February, 2021, the delay condonation application has been allowed.

E. In Writ Petition No. 684 of 2021, the petitioner is the decree holder by the judgment of which was rendered on 31st October, 2017, in Suit No. 279 of 2010, against which, the respondent had preferred a Civil Appeal, accompanying with it the delay condonation application, which was numbered as Misc. Case No. 28 of 2020, and the same has been allowed by the impugned order dated 27th February, 2021.

3. Learned counsel for the petitioner had submitted through his argument that the application, which was submitted by the respondent, seeking condonation of delay in preferring Appeal, was not assigning the plausible and satisfactory reasons to condone the delay.

4. Secondly, he submits that in view of the findings, which has been recorded by the learned Appellate Court, while passed the impugned order and allowing the delay condoantion application, would be construed to be a finding, which has been recorded by the Appellate Court, by venturing into the merits of the matter and rather redefining the status of the petitioners and their nature and status of their occupancy, over the property in dispute in relation to which the petitioners were the decree holders, the details of which, has been given above.

5. Thirdly, he submits that by allowing of delay condonation application by condoning an inordinate delay of 4 years and 4 months, in the first case and henceforth is too longer delay which could be condoned and if at all, it was required to be condoned, then the respondent was supposed to justify the reasons for delay in their application, which they have submitted under Section 5 of the Limitation Act.

6. After having heard the learned counsel for the parties, and having scrutinized the impugned judgements, which has been rendered, the first limb of argument, which the learned counsel for the petitioner has tried to stress upon, is in view of the finding which has been recorded in para 5 of the judgment, which he is construing it, as to be the finding on merits of the case itself, pertaining to the defining the status of the petitioner, as to be an encroacher, this argument itself is a misnomer, for the reason being that if the observations which had been made in para 5, of the judgment are judicially scrutinized, they are not rather the findings which have been recorded by the Court; but they are grounds which had been taken by the respondents in the delay condonation application and that could be justified if we consider the application for delay condonation itself, which was preferred by the respondents, and particularly, that as contained in para 3 of the delay condonation application.

7. Referring to the pleading which has been raised by the respondent, raised as a ground for seeking condonation of delay, the same cannot be treated or interpreted as to be a ground to define the status because as per opinion of this Court, that is still a subject matter to be decided by the Appellate Court, on its own merit. In fact, the reasoning for condonation of delay, which has been assigned by the learned Appellate Court is taken into consideration, rather it is more specifically given in para 8 of the judgment, where it has been observed that the reason for delay, which has been considered by the Court below was on account of certain derelictions and conduct of

business of the department, by the employees of the Nagar Nigam, in preferring the Appeal, within the specified time frame, and hence, it was observed that a statutory organization, which is a creation of statute, cannot be made to suffer on account of a dereliction in performance of their employees in providing an appropriate and adequate opinion or being diligent in preferring the appeal within the time.

8. This fact was also controverted, by the learned counsel for the petitioner, that non diligence at the hands of the respondent cannot be invariably, taken as to be a genuine ground to condone the delay in the light of the judgment, which he had placed reliance, as rendered by the Hon'ble Apex Court in SLP No. 9217 of 2020, State of Madhya Pradesh and others Vs. Bherulal, and particularly, the reference has been made by the learned counsel for the petitioner to the contents of para 6 and 7 of the said judgment, which is extracted hereunder :-

"6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities

coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

9. What was the backdrop under which the delay of 663 days, was under consideration before the Hon'ble Apex Court in the matter of Bherulal (Supra) could not be clarified and culled out with regard to the findings recorded by the Hon'ble Apex Court in the aforesaid judgement.

10. But herein, in the present case, considering the application for delay, which has been submitted by the respondent, before the learned Appellate Court, and particularly, that as the pleading for delay raised in para 3, as already referred to above, that would suffice him to explain the delay, which is quite common experience and it cannot be ruled out that non filing of the appeal in time might have been catalysed by some outside forces for not filing the appeal within time, for being benefitted wrongfully.

11. Even otherwise also, the principle of limitation intends to protect the right, which is otherwise is claimed to have been created in favour of a person, during the period of limitation, which was provided under law for an aggrieved person to prefer an Appeal, if the right has been crystallized by a judgment. In the present case, the petitioner is a decree holder in a Suit for the grant of decree of permanent injunction. It is not a crystallization of a right but rather a crystallization of status of the petitioner and of his occupancy of the shop, which is the subject matter in the Suit, which has respectively decreed in their favour. The period of limitation, which is expired herein, and the condonation of delay, which has been made by the Court by passing the impugned order; is not per se deciding the status of the petitioner as to whether his capacity was that of a tenant or that of an encroacher, because even otherwise also all these aspects are still open to be argued and addressed by the respective parties to the proceedings, when the appeal itself is decided on its own merit. Even

otherwise also, if the power of condonation of delay is taken into consideration in the light of the ratio propounded by the Hon'ble Apex Court in a judgment reported in (2004) 1 SCC 119, Apangshu Mohan Lodh and others Vs. State of Tripura and others, particularly as that contained in para 2, which is extracted hereunder :-

"2. Learned counsel appearing for the appellants urged that since filing of letters patent appeal was grossly delayed and there being no explanation for condonation of delay, the High Court ought not to have condoned the same. We do not find any merit in this submission. The division Bench found that the State had made out sufficient cause for condonation of delay. This power of condonation is discretionary and has to be liberally construed."

12. It has been held that the power to condone the delay by invoking the provisions contained under Section 5 of the Limitation Act, is absolutely a discretionary remedy which has been vested with Court and which is to be considered by the Court respectively in consonance to the circumstances entailing consideration of condonation of delay, in each respective cases. It cannot be unilaterally made applicable by adopting common yardstick to condone the delay in a case and hence, it has been held that it has to be liberally construed and if at all there is any loss suffered due to delayed filing of the proceedings of an appeal, it could be reasonably compensated by the damages of the cost to be imposed by the Court.

13. In that view of the matter, and for the reasons aforesaid, I am of the view that if the reason for delay condonation and its condonation is taken into consideration, the negligence on the part of the employees of the Municipal Corporation, is quite a natural phenomenon, which cannot be ruled out, that it might have chanced, but that itself will not deprive the statutory corporation, to avail its right to scrutinize the judgment of the Trial Court before the First Appellate Court, which is rather the first superior Court available for

appreciation of facts, law and evidence, which were the foundation of the decree rendered in favour of the petitioner, herein.

14. Hence, these Writ Petitions are dismissed, but with the slight modification to the effect that the effect of condonation of delay, which has been granted in favour of the respondent by the learned Trial Court would carry a cost of Rs.5,000/- each (in all five Writ Petitions respectively) to be paid by the Nagar Nigam to the petitioner, as a consequence of the condonation of delay. Apart from it, the Appellate Court is also directed to decide the respective Appeals exclusively on its own merit, irrespective of any finding, which has been recorded in the application or in the pleadings raised in the delay condonation application.

15. Subject to the above, the Writ Petitions are dismissed.

(Sharad Kumar Sharma, J.) 18.03.2021 Shiv