1. Heard learned Standing Counsel for the applicant-appellant and perused the record.
2. This is an application seeking condonation of delay in filing the appeal which is reported to have been filed with a delay of 1 year 42 days. The appeal is directed against the judgement and decree dated 19.5.2007 passed by Addl. District and Sessions Judge, Court No. 14, Kanpur Nagar in Civil Appeal No. 181 of 2003; Union of India and another Vs. M/s Govind Narain and others .
3. Explanation furnished by the plaintiff-appellants as contains the factum that the record was misplaced. The averments contained in paragraph nos. 3 to 12 of the affidavit are reproduced as under:
"That regarding further course of action the DGC (Civil), Kanpur who had conducted the case in the District Court was contacted and was requested to give his advice in the matter. After getting advice from him the matter was throughly examined at different levels in different wings of the office of the Director General of Supplies and Disposals in Delhi.
That the record of the case misplaced somewhere in the office and was not traceable despite all best efforts in that regard.
That since the record of the case could not be traced out the file was ordered to be reconstructed.
That reconstruction of file on the basis of material/record, whatsoever, available at different places as also from the local counsel at Kanpur, was a long process and consumed quite some time. \ That after somehow reconstructing the file/record of the case the matter was examined thoroughly in the department and was referred to the Ministry of Law for their legal advice regarding future course of action in the matter, as they are the final authority in legal matters of the Central Government and its departments.
That the Ministry of Law examined the matter and finally advised, in February, 2008 to challenge the aforesaid judgment and decree of the Appellate Court before this High Court by filing second appeal.
That after getting the advice from Ministry of Law the matter was processed for taking necessary approval from the authorities concerned for filing of the Second Appeal.
That after getting approval the Addl. Solicitor General of India, Allahabad was contacted and was requested to get the Second Appeal filed before this Hon'ble Court.
That thereafter the matter was discussed with the Central Government counsel and as required by him the judgment and record including the copies of plaint and Memo of Appeal etc were obtained from the District Government Counsel (Civil) Kanpur Nagar and the same were received from him in 2 or 3 parts on different dates and finally in the second week of August, 2008 and thereafter the present Second Appeal has been drafted and prepared by the Central Government counsel, and after getting of the same by the competent authority the same is being filed before this Hon'ble Court.
That because of misplacement and resultant reconstructions of the file from different places and after following the Government procedure regarding approval etc did consume enough time which resulted delay in filing of the Second Appeal which was quite unintentional and due to reason and circumstances beyond control, hence the delay, if any, in filing this Second Appeal deserves to be condoned".
4. Having gone through the above explanation, I find the same to be totally sketchy and superficial and, in my view, there is virtually no explanation as to why the matter was not taken up with due earnest and reasonable expediency.
5. It is true that when State is a party, and file appeal with some delay, it may deserve some leverage for official hierarchical steps for permission etc. but a wholly unexplained, reckless and negligent approach of delay cannot be overlooked particularly when it is not the case of applicants that they have taken any action against erring individual.
6. The expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs. Katiji, 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken 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. The Court further said that judiciary is respected not 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.
7. In the matters where action is brought by Government, no person is individually affected and in ultimate analysis it is the public interest which suffers. The decisions of Government are collective and institutional and do not share the characteristic of decisions of private individuals. The law of limitation though is equal and apply at par to both private individual and Government but where the Government makes out a case of sufferings to public interest owing to acts of fraud and bad faith on the part of its officials and agents, and also, the intention of Government not to allow such officers of doubtful integrity to go scot free, the Court should also come forward to do justice in the interest of public at large, but, a mere eye wash kind of explanation, without any honest intention of State authorities to proceed against tainted officers, or, those who have acted in a bad faith, or, those who have worked negligently, the explanation that delay must be condoned in public interest would be superficial and lacking bona fide, hence difficult to be accepted by Court.
8. In G. Ramegowda, Major Vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, in para 8 of the judgment, the Court said:
"8. . . . . . . . Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it might, perhaps, be some what unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning-of course, within a reasonable limits-is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law-officers of the Government placed the Government in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to Government."
9. In P.K. Ramachandran Vs. State of Kerala, AIR 1998 SC 2276 the Court said:
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
10. The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitation is founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.
11. There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.
12. I need not to burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.
13. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide 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.
14. The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 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. This principle still holds good, inasmuch as, the aforesaid decision of Privy Council has repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191.
15. In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.
16. In Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr., (2010) 5 SCC 459, the Court observed that same yardstick should be applied for allowing application for condonation of delay filed by private individuals and the State, but certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay.
17. The aforesaid decision further makes it clear that it is only certain amount of latitude and not an unguided and unlimited charity in the matter of delay, insomuch so, that ignoring the apparent laxity on the part of State officials, the same must be ignore and merely because delay is on the part of State, it should be condoned. Extension of certain amount of latitude and a complete go by are two different things while the former is permissible but later one is totally prohibited. It is for this reason, this Court find that later aspect has been further explained in much explicit and straight manner in subsequent decisions rendered in 2012, which are noted herein below.
18. In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Court said :
"...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."
19. The Court also noticed earlier decisions observing that lenient view in condoning delay may be taken when defaulting parties are the Government and Government Undertaking and in this regard, it proceeded to hold in paras 29 and 30 as under:
"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
20. The above view has been followed recently in Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., AIR 2012 SC 1506, and in para 13 thereof, the Court as said as under:
"13. In our view, 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. Accordingly, the appeals are liable to be dismissed on the ground of delay."
21. Following various earlier decisions, some of which have been referred hereinabove, including State of Nagaland Vs. Lipok AO and others (supra) in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:
"What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
22. In my view, the kind of explanation rendered in the case in hand does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, I find that here is a case which shows a complete careless and reckless long delay on the part of applicants which has remain virtually unexplained at all. Therefore, I do not find any reason to exercise my judicial discretion exercising judiciously so as to justify condonation of delay in the present case.
23. In the result, the application deserve to be rejected.
24. I order accordingly.
Order Date :- 13.11.2014 SKS Hon'ble Sudhir Agarwal,J.
Since this appeal has been filed beyond time and application seeking condonation of delay has been rejected vide order of date, this appeal stands dismissed being barred by limitation.
Order Date :- 13.11.2014 SKS