Court No. - 37
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1053 of 2019 Appellant :- Yamuna Expressway Industrial Development Authority And Another Respondent :- M/S Smt. Shakuntala Educational And Welfare Society And Another Counsel for Appellant :- Aditya Bhushan Singhal,Sri Pramod Jain, Sr. Advocate And Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1055 of 2019 Appellant :- Yamuna Expressway Industrial Development Authority Respondent :- M/S Smt.Shakuntala Education And Wel Fare Society And Another Counsel for Appellant :- Aditya Bhushan Singhal,Sri Pramod Jain, Sr. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
Order on Delay Condonation Application
1. Heard Sri Pramod Jain, learned counsel for the appellant, Sri Sunil Kumar Gupta, learned Senior Advocate assisted by Sri Anubhav Singh and Sri Ankit Saran, learned counsel for the respondents.
2. These are applications seeking condonation of delay in filing both these appeals. There are delay of 81 & 104 days in filing the First Appeal From Order Defective Nos. 1055 of 2019 and 1053 of 2019 respectively. The reasons for delay are mentioned in the application seeking condonation of delay. The both the appeals are under Section 104 read with Order 43 Rule 1 (r) of Civil Procedure Code, 1908 challenging the judgment and order dated 29.3.2019 & 6.3.2019 passed by learned Civil Judge, Senior Division, Gautam Budhh Nagar in Original Suit No.1455 of 2018 and in Original Suit No.1352 of 2019 respectively. The delay which has been occurred is sought to be requested to be condoned.
3. Learned counsel for the appellants submits that deponent of delay condonation application is the Senior Manager. It is submitted that local counsel Sri Rajeev Garg did not inform the appellant about the order dated 29.3.2019 and on 23.7.2019 when the officer went to the office of the counsel they came to know that the order was passed. They applied for certified copy on 29.7.2019 and on 5.8.2019, the Chief Executive Officer of the appellant granted permission to prefer the appeal which came to be filed on 16.9.2019.
4. According to learned counsel for the appellant, there is no mala fide intention. The reason given at para 13 of the affidavit. The respondents 1 & 2 vehemently objected to getting the matter heard on merits. They have filed their reply and it is contended that no affidavit of the Advocate is filed and further contended that this was an after thought and the delay is so enormous that it should not be condoned.
5. We have heard learned counsel for the parties. Sri Pramod Kumar Jain, learned counsel for the appellant has heavily relied on the decision in Sridevi Datla Vs. Union of India and Ors., (2021) 5 SCC 321. As against this, learned counsel for the respondent has relied on the reply filed in both these appeals and has contended that in view of the settled legal position the delay cannot be condoned.
6. Division Bench of this Court on Delay Condonation Application filed in FIRST APPEAL DEFECTIVE No. - 60 of 2019 (Krishi Utapadan Mandi Samiti Vs. Sheo Pal Singh And 8 Others) decided on 29.1.2020 held as under :
"9. Perusal of the affidavit filed in support of the delay condonation application shows that there was no gross negligence on the part of the appellant in filing the present appeal. The Apex Court in the case of State of Haryana Versus Chandra Mani & Others (Supra) has held in paragraph no. 10 as follows:-
"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the cours or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."
12. In the present case, though, day to day delay has not been explained by the appellant but we are of the considered view that no gross negligence has been committed by the appellant- a statutory body. In this regard it is worthwhile to note the decision of the Apex Court in the case of B.S. Sheshagiri Setty and others Versus State of Karnataka and others (Supra), wherein inter alia it was observed that "Every day's delay must be explained" does not mean that a pedantic approach should be made. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay.
13. The case cited by the respondent does not help the respondent keeping in view the catena of decisions of the Apex Court on the point of limitation for the purpose of condonation of delay. The Court should not adopt an injustice oriented approach, it may result in grave miscarriage of justice. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects. Implicit in the very nature of Government functioning is procedural delay incidental to the decision making process.
14. Considering the facts and circumstances of the case, we are of the opinion that it is a fit case for condoning the delay. The delay in filing the appeal is accordingly condoned. The delay condonation application is allowed."
7. The above decision and the law laid therein can be relied on. The procedural delays in both these matters are not so grave that they will dis-entitle from being heard on merits. The approach of the Court in considering the application for condonation of delay as spelled out in Sridevi Datla (Supra) can be looked into.
8. In this case, the delay is not inordinate. Considering of prejudice to the other side is relevant factor. The suit is still pending before the Court below. Appellant has challenged the grant of interim injunction in favour of the plaintiffs. Whether it is projected that there is no prejudice caused to the other side when the delay is condoned. Thus, we condone the delay in the light of legal proposition and the law.
9. Delay condonation applications in both the appeals are allowed.
10. Office to give regular number to both these appeals and list for admission hearing on 8.10.2021.
Order Date :- 30.9.2021 DKS