Hon'ble Arvind Kumar Tripathi (II),J.
This is an application for condonation of delay in filing the appeal, which is directed against the judgment and decree dated 26.04.2006 passed by the court below in O.S. No. 225 of 2000, decreeing the suit for recovery of Rs.5,40,000/- along with interest etc. Plaintiff, a contractor, filed the suit for return of security amount of Rs.50,000/- as also for return of Rs.4,25,000/- deposited on 31/07/1999, as advance money in respect of contract, which was ultimately not alloted to him. The trial court found as against the oral and documentary evidence, the defendant-appellant could produce only one witness in rebuttal. The plaintiff proved his case and it decreed the suit accordingly on 26/04/2006.
Office has reported that appeal is barred by time by 207 days.
An application for condonation of delay in filing the appeal is on record. In the affidavit filed in support of application, only this much has been stated that instructions were issued to Shri Prem Babu Sharma by Mukhya Nagar Adhikari on 24-07-2006 to file appeal. Shri Prem Babu Sharma after collecting documents could not file the appeal as he was engaged in some very important work relating to audit and recovery dues and he could not give his time to the present appeal. The file was misplaced by him and could not be traced. Shri Prem Babu Sharma retired on 31.12.2006. Till that time the file was not traceable in the office.
The matter was heard earlier and it was found that the explanation given in affidavit is not at all satisfactory. On the request of learned counsel for the appellant, time was granted for filing supplementary affidavit stating that as on what date expenses for filing the appeal was given to Shri Prem Babu Sharma. The said supplementary affidavit has not been filed. Further time for filing the same was prayed for. We are not inclined to grant any further time.
Appellant has failed to show any sufficient cause not to file the appeal within time. The condonation of delay has been sought for on vague and general allegations. There is no corroborative material except a bald statement that instructions were issued on 24/07/2006 to Prem Babu Sharma. The limitation was upto 12/08/2006. The other averments as contained in paras 9 to 11 of the affidavit do not inspire any confidence. The vague and stereotype allegation that Prem Babu Sharma could not file the appeal as he was engaged in some very important work do show carelessness and apathy of the appellant and cannot be a ground to condone the delay.
In recent decision in the case of Office of the Chief Post Master General & others v. Living Media India Limited & another, JT 2012 (2) SC 483, it has been held that the law of limitation undoubtedly binds everybody including the government. It has been held as follows:
"it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."
Similar view has been taken in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, JT 2012 (4) SC 55 that the expression 'sufficient cause' gets its colour from the fact of each case. Liberal approach is be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. It is also to be kept in mind that successful litigant has acquired rights on the basis of judgment under challenge and has spent time perusing the litigation.
Viewed as above, we find that there is no averment in the affidavit as to when the expenses for filing appeal were given to Prem Babu Sharma. Non disclosure of such date in the affidavit appears to be deliberate. A sum of Rs.40,182.50 is court fee payable on memo of appeal besides other expenses. When these expenses were drawn from the account of the appellant has not been disclosed inspite of time granted to them. It is a case of sheer negligence and inaction on the part of the appellant.
The delay in filing the appeal has not been properly explained. We, therefore, reject the application for condonation of delay. Consequently, the appeal is dismissed as barred by time.
(Arvind Kumar Tripathi (II), J) (Prakash Krishna,J) Order Date :- 23.7.2012 MK/