Heard Sri Madan Mohan, learned counsel appearing for appellant and Sri C.K.Parekh, learned counsel appearing for respondents.
This appeal has been filed by U.P. Avas Evam Vikas Parishad by a delay of about five years one day on the date when it was filed.
It appears that reference court has passed on order on 31.1.2001. The appeal was within time up to 1.5.2001 but it was actually filed on 1.5.2006. An application under Section 5 was filed explaining the delay that how it has taken place. Notices were issued and respondents have also filed counter affidavit and rejoinder affidavit has been filed on behalf of appellant.
Sri Madan Mohan, learned counsel appearing on behalf of appellant has submitted that after the decision, file was handed over to a counsel who at that time was the counsel for Avas Vikas Parishad but he has not filed the appeal then Sri V.K.Berman was entrusted to file the appeal on 24.8.2005. It has been averred in paragraph 8 of the affidavit that certified copies and other expenditure including vakalatnama were handed over to Sri V.K.Berman, Advocate and then the appeal was filed on 1.5.2006. An averment made in the application in Paragraphs 7, 8, 9, 10 and 11. The same are being quoted below:-
"7. That the award was given by the judgment dated 31.1.2001 and thereafter certified copy of judgment and decree along with vakalatnama was handed over to Sri Ajai Kumar Misra but the learned counsel did not file the appeal and at present the said counsel has been removed from the panel of Advocates of U.P. Awas Evam Vikas Parishad and thereafter Sri V.K.Barman, Advocate was appointed to file the appeal by the order dated 24.8.2005.
8. That the learned counsel advised to obtain certified copies and expenses along with vakalatnama and decree and thereafter steps were taken to obtain certified copy and Sri V.K.Barman, Advocate was contacted.
9. That the appellant was then advised to send expenses and court fees. A letter was also sent to the Executive Engineer on 17.1.2006 at Gorakhpur and thereafter fresh certified copies of the judgment and decree and expenses were deposited.
10. That court fee was also deposited on .... and as such the appeal is being filed.
11. That the delay in filing the appeal was due to the fact that counsel on the panel Sri Ajai Kumar Misra did not take appropriate steps for filing the appeal and also did not inform the office of Executive Engineer about the difficulty if any, in filing the appeal."
Sri Madan Mohan, learned counsel appearing for appellant has placed reliance upon a Apex Court judgment reported in 1996 A.I.R. (S.C.)-0- 1623 State of Haryana Vs. Chandra Mani. Taking support of aforesaid judgment, he has submited that lenient view should be taken by the Court while condoning the delay being fact that there are channels to which file has to be moved from one officer to another, therefore, time has taken place to file the appeal.
A counter affidavit has been filed on behalf of respondents denying allegations made in affidavit and has submitted that there is no proper explanation given in the application regarding delay of about five years.
Sri Parekh, learned Advocate appearing for respondent has submitted that the allegation made in paragraphs 7 and 8 of the application cannot be believed in view of fact that only an averment has been made that file and other documents have been entrusted to a counsel. No date or any time has been mentioned that on which date certified copy of the order was obtained and when it was handed over to the counsel and why he has not filed the appeal, then another counsel was entrusted. It is settled in law that day to day delay has to be explained while taking benefit of Section 5 of Limitation Act. He has placed reliance upon a judgment of the Apex Court reported in (2010) 5 Supreme Court Cases, 459 Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and another and has placed reliance upon paragraphs 14 to 16 of the said judgment. The same are being quoted below:-
14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribed limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression "sufficient cause" employed in Section 5 of the Limitation Act, 1963 and similar other statues is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate-Collecotor (L.A.) v. Katiji N.Balakrishnan v. M.Krishnamurthy and Vedabai v. Shantaram Baburao Pati.
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasising that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and 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."
Taking support of aforesid judgment, learned counsel for respondents submits that this appeal is liable to be dismissed on that ground alone.
I have considered the submission of parties and perused the record. From perusal of application under Section 5 of Limitation Act, I am of opinion that in Para 7 of the affidavit, it has been stated that after the judgement dated 31.1.2001, certified copy of the decree was sent to a counsel but as the appeal was not filed then it was handed over to another counsel. From 2001 to 2005, this is the only explanation for a period of four years. In case, the file was handed over to another counsel on 24.8.2005, in spite of aforesaid fact, the appeal was filed on 1.5.2006 after a lapse of about nine months but in the affidavit there is no explanation that why this delay has taken place. It is settled in law by this Court and by the Apex Court that for taking benefit of Section 5 of Limitation Act, it is necessary that day to day delay has to be explained and if it is not explained, the person concerned is not entitled for any benefit.
From the record, it is clear that there is a delay of five years which has not been properly explained, therefore, this appeal can easily be dismissed on the ground of delay.
The application under Section 5 for condonation of delay is hereby dismissed.
Order Date :- 28.3.2011 SKD Hon'ble Shishir Kumar,J.
Consequence thereof as Section 5 application has already been dismissed, therefore, this appeal is also dismissed.
No order as to costs.
Order Date :- 28.3.2011 SKD