1. Heard Sri Hari Om Pandey, learned counsel for the petitioners and Sri Raj Bux Singh, learned Additional Chief Standing Counsel for opposite party Nos. 1 to 3 through video conferencing and perused the record.
2. For the order proposed to be passed issuance of notice to opposite party Nos. 4 and 5 is hereby dispensed with.
3. The petitioner has filed this petition for following reliefs:
"1. To issue a writ, direction, or order in the nature of Certiorari quashing of the impugned order dated 05.04.2021 passed by the Additional Commissioner Judicial Lucknow Region Lucknow in Revision No. 967/2002-03: Savitri Devi and another Vs. Dr. Ram Nrayan Verma. (contain as Annexure No.1)."
2. To issue a Writ, direction, or order in the nature of Mandamus directing the Additional Commissioner Judicial IInd Lucknow Region Lucknow to decide the Revision No. 967/2002-03, Savitri Devi and Another Vs. Dr. Ram Nrayan Verma pending before him on merit.
3. To issue any such other writ, direction, or order as this Hon'ble Court deems fit and proper."
4. Learned counsel for the petitioners submit that the petitioners had purchased land of Gata No. 92 area 0.089 situated in village Mahmudabad Tehsil Mahmudabad, District Sitapur by way of the registered sale deed dated 19.09.1991 and 17.08.1991 from one Mahant Vishan Das and came into possession over the said land. The petitioners application for mutation under Section 33/39 U.P. Land Revenue Act was allowed by the Tehsildar by order dated 21.10.1994, against which the opposite party No.4 filed appeal No. 341/181, which was allowed by order dated 23.10.2002 by the Sub-Divisional Magistrate. The petitioners preferred Revision No. 967/02-03: Savitri Devi and others Versus Dr. Ram Narayan Verma, which was dismissed for non-prosecution by order dated 14.09.2010, against which the petitioners filed an application for setting aside of the order dated 14.09.2010, on 29.03.2019 along with an application for condonation of delay, which has been rejected by the order dated 05.04.2021, under challenge in this petition.
5. Learned counsel for the petitioners submits that the order dated 05.04.2021 has been passed on the ground that there is delay of about eight years in filing of recall application, but the day-to-day delay has not been explained by giving any satisfactory explanation.
6. Learned counsel for the petitioners submits that the petitioners have explained the cause, on account of which the delay occurred, which should have been considered liberally in favour of condonation of delay. The petitioners are poor village ladies and they were assured by their counsel that when the revision was listed for hearing after receipt of the lower court record, he would inform, but as they did not receive any information the petitioners could not appear. He submits that the courts should endeavour to decide the lis on merits, instead of rejection on the ground of limitation. The impugned order is also non-speaking as the cause shown by the petitioners for condonation of delay has not been considered.
7. Learned counsel for the petitioners has placed reliance on the judgment of Hon'ble Supreme Court in the Case of State (NCT of Delhi) Versus Ahmed Jaan reported in (2008) 14 SCC 582 in support of his submission.
8. Sri Raj Bux Singh, learned Additional Chief Standing Counsel submits that as there is inordinate delay of eight years in filing the application for setting aside the order, the Additional Commissioner rightly rejected the application for recall and for condonation of delay.
9. I have considered the submissions advanced by the learned counsel for the parties and perused the material on record.
10. The proof by sufficient cause is a condition precedent for exercise of extraordinary discretion vested in the Court. What constitutes sufficient cause cannot be laid down by hard-and-fast rules, but the discretion given by the Section 5 of the Limitation Act, should not be defined or crystallized, so as to convert a discretionary matter into a rigid rule of law. Whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case.
11. It has been well settled that the term "sufficient cause" is to receive liberal construction to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the applicant, seeking condonation of delay. The Courts should adopt a justice-oriented approach in condoning the delay, as refusal to condone delay in many cases may result into miscarriage of justice.
12. In Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, AIR 1987 SUPREME COURT 1353, the Hon'ble Supreme Court held that the legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act, 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' is adequately elastic to apply the law in a meaningful manner, which subserves the ends of justice. The relevant part of paragraph 3 of the Collector, Land Acquisition, Anantnag (supra) is being reproduced as under:-
"3. The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. "
13. In K. Subbarayudu and others Vs. Special Deputy Collector (Land Acquisition) (2017) 12 SCC 840, Hon'ble Supreme Court in paragraph 11 has held that the term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fides is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay.
14. In the Case of State (NCT of Delhi) Versus Ahmed Jaan reported in (2008) 14 SCC 582, upon which the reliance has been placed by learned counsel for the petitioners, also it has been held that Section 5 of the Indian Limitation Act is to be construed liberally to do substantial justice to the parties. It has also been held that what counts is not the length of the delay, but the sufficiency of the cause shown. The relevant part of the paragraph 11 is reproduced as under:
"11. "8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court.What counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishmamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
9. What constitutes sufficient cause cannot be laid down by hard-and- fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression 'sufficient cause' should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari' a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.
11. In State of Kerala v. EK. Kuriyipe it was held that whether or not there is sullicient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath* it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the tribunal and renmit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.
12. In O.P. Kathpalia v. Lakhmir Singh a Bench of three judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition Vs. Katiji a Bench of two judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice -that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression 'every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serous risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was accordingly condoned."
15. A perusal of the order under challenge shows that the application for condonation of delay has been rejected on the ground that the petitioners did not explain the day-to-day delay. In the case of Collector, Land Acquisition, Anantnag (supra) the Hon'ble Supreme Court has clearly held that "every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. Recently in the case of Ummer Vs. Pottengal Subida and Others, (2018) 15 SCC 127, the Hon'ble Supreme Court has held that "one cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of the Apex Court and is, therefore, held as no longer good law".
16. This court finds that the petitioners in their application for condonation of delay indicated reasons for the delay in filing the application for setting aside of the order dated 14.09.2010. The Additional Commissioner (Judicial), Lucknow unfortunately did not deal with those explanations and has merely stated that no justifiable reason has been stated for day-to-day delay. The Additional Commissioner was required to examine correctness of the explanation given by the petitioners in their application and was required to record his specific finding on consideration on those reasons and keeping in view the principles of law, on the subject of condonation of delay, if the explanation furnished by the petitioners was plausible or not and constituted "sufficient cause" or not.
17. In view of the above legal position and the law laid down, I am of the considered opinion that the Additional Commissioner (Judicial) in passing the order under challenge, rejecting the petitioners' application for condonation of delay and consequent thereupon in rejecting the application for setting aside the order dated 14.09.2010 has committed illegality. The cause shown in the application should have been considered and on such consideration, keeping in view the settled law on condonation of delay after recording specific finding if the cause shown was or was not sufficient, the applications should have been decided.
18. For the aforesaid reasons, the order under challenge deserves to be quashed, the writ petition deserves to be allowed and the matter deserves to be remitted to the Additional Commissioner for decision afresh on the petitioners' application for condonation of delay.
19. Accordingly, the petition succeeds and is allowed. The impugned order dated 05.04.2021 passed by the Additional Commissioner (Judicial) Lucknow Region Lucknow-opposite party No.1 in Revision No. 967/2002-03: Savitri Devi and another Vs. Dr. Ram Nrayan Verma. (contain as Annexure No.1) is hereby quashed. The matter is remitted to the court of Additional Commissioner Judicial Lucknow Region Lucknow for decision afresh on the petitioners' application for condonation of delay, in accordance with law keeping in view the observations made hereinabove, with due opportunity of hearing to the parties concerned, expeditiously within a period of three months from the date of providing of copy of this order before the said court. If the application for condonation of delay is allowed the petitioners' application for setting aside of the order dated 14.09.2010 shall also be considered and decided in accordance with law with due opportunity of hearing to the parties concerned.
20. No orders as to costs.
Order Date :- 26.5.2021 Arvind