Dolly Minj vs Lieutenant Governor And Others

Debangsu Basak, J

In this revisional application, the petitioner has assailed an order dated July 1, 2019 passed in T A No. 12 of 2015.

By the impugned order, the learned judge has allowed an application under section 5 of the Limitation Act, 1963 condoning a delay of 1,385 days in making and filing an appeal from an ex parte decree.

Learned advocate appearing in support of the revisional application has submitted that, the defendants did not explain the delay in making and filing the appeal in their application for condonation of delay. She has submitted that, the defendants were aware of the title suit. An employee of the defendants was examined as a witness in the Suit after the title suit was fixed for ex parte hearing. Therefore, the defendants cannot claim that, the defendants were not aware of the title suit or the ex parte decree passed in such title suit. She has submitted that, the defendants cannot take the benefit of the conduct of the advocate for the defendants to explain the delay. She has relied upon (2012) 12 Supreme Court Cases 693 (B. Madhuri Gaud vs. B. Damodar Reddy) in support of her contentions.

Relying upon (2008) 17 Supreme Court Cases 448 (Pundlik Jalam Patil (Dead) By Lrs. vs. Executive Engineer, Jalgaon Medium Project and another), learned advocate appearing for the petitioner has submitted that, the law of limitation is same for the citizens and the government authorities. Therefore, the defendants as government authorities cannot claim special privilege when seeking condonation of delay. According to her, the impugned order is vitiated by material irregularity. The delay of 1,385 days was not adequately explained by the defendants in the application for condonation. Therefore, the application under Section 5 of the Limitation Act, 1963 could not have been allowed. The learned Judge had acted with material irregularity in doing so.

Learned advocate appearing for the opposite parties/ defendants has submitted that, the defendants were not aware of the transfer of the title suit from one court to the other. Subsequent to the transfer, the learned advocate entrusted with the suit, lost track of the same leading to an ex parte decree being passed. He has submitted that, the delay was adequately explained in the application for condonation of delay. The same was accepted to be sufficient. The court should not interfere with the impugned order.

The petitioner as the plaintiff had filed a suit for declaration and injunction in respect of an immovable property. The petitioner as the plaintiff had prayed for a declaration that the plaintiff is in continuous actual physical possession of common land measuring about hundred square metre out of survey no. 2265 situated at Aberdeen (Supply Line) in Port Blair Tehsil of Andaman District more particularly described in the schedule to the plaint since 1979. The petitioner as the plaintiff had sought for a mandatory order upon the defendants/opposite parties to regularise the encroachment of the plaintiff in terms of the policy decision of the government of 1987. The petitioner as the plaintiff had also sought for consequential reliefs to the decree for declaration and mandatory injunction in the suit. The defendants/opposite parties had contested the suit by filing a written statement. The suit filed by the petitioner/plaintiff, was transferred to another court. On transfer, the defendants/opposite parties did not contest the suit any further. An ex-parte decree was passed in the suit on September 11, 2014.

According to the defendants/opposite parties, they came to know of the ex parte decree on December 12, 2011. Such knowledge was derived when the plaintiff/petitioner made a representation to the authorities. The defendants/opposite parties thereafter made enquiries and came to learn that, the suit was decreed ex parte. The defendants/opposite parties being government authorities requested the learned government pleader to take steps. The learned government pleader advised filing of an appeal. The defendants/opposite parties thereafter applied for certified copy of the order and judgement dated September 8, 2015 which was made available to them on September 16, 2015. The defendants/opposite parties after examining the same sent the decree to their learned advocate on September 24, 2015. In the process, the defendants/opposite parties incurred a delay of 1,385 days in filing the appeal. The defendants/opposite parties applied under Section 5 of the Limitation Act, 1963 for condonation of such delay. By the impugned order, the learned court allowed the application under Section 5 of the Limitation Act, 1963 condoning the delay of 1,385 days.

Pundlik Jalam Patil (supra) has held that, when the state and its instrumentalities are the applicant seeking condonation of delay, they may be entitled to certain amount of latitude. However, the law of limitation is same for citizen and for government authorities. The Limitation Act does not provide for a different period to the government filing an appeal and application as such. B. Madhuri Gaud (supra) has held that, blaming the advocate by the applicant for condonation of delay was not sufficient. In the facts of that case, the allegation of misplacement of documents by the office of the advocate was vague and was not relied upon. The court found that the applicant did not explain the delay adequately.

It is trite law that, while the court is considering an application for condonation of delay, the court is to act liberally.

It is open to the court to accept a plausible explanation for condoning the delay. It is not necessary that delay of each day should be explained in great details. What is necessary is that, the delay over the period of time is adequately explained. A probable explanation for the cause of delay can be accepted as sufficient.

In the facts of the present case, the defendants/opposite parties were contesting the suit upto a given stage by filing a written statement. Thereafter, the defendants/opposite parties did not appear in the suit. The explanation given by the defendants/opposite parties for not appearing subsequently is that, the suit was transferred from one court to the other and that subsequent to the transfer of the suit, the learned advocate engaged by the defendants/opposite parties to conduct the suit on their behalf lost track of the suit. It is not in dispute that the suit was transferred from one court to the another. There is nothing on record to suggest that, the defendants/opposite parties were notified about the transfer of the suit from one court to the other court by the court or the plaintiff. Therefore, the explanation that, the learned advocate for the defendants/opposite parties lost track of the suit after its transfer can be accepted as plausible. The defendants/opposite parties acted subsequent to becoming aware of the ex parte decree. They obtained certified copy of the decree for the purpose of preferring an appeal after engaging an advocate to file the appeal accompanied by an application under Section 5 of the Limitation Act, 1963 which was allowed by the impugned order. The learned Judge while allowing the application under Section 5 of the Limitation Act, 1963, has considered these factors. The learned Judge has discussed the parameters of law under which an application under Section 5 of the Limitation Act, 1963 is required to be considered. Nothing has been placed on record to suggest that, the discussion of law as recorded in the impugned order is incorrect or that the learned judge applied wrong provisions of law to arrive at the findings as returned by him in the impugned order.

The contention that, the defendants/opposite parties were aware of the proceedings subsequent to the transfer of the suit from one court to the other cannot be accepted. The petitioner has relied upon evidence given by an official of the government as a witness of the plaintiff/petitioner in the suit. The government officer appeared as a witness of the plaintiff/petitioner. That by itself, without the plaintiff/petitioner proving that notice of the transfer of the suit from one court to the other was served upon the defendants/opposite parties, I am afraid, would not be sufficient to fasten knowledge of the transfer of the suit from one court to the other, on the defendant/opposite parties.

In view of the discussions above, I find no material irregularity with the impugned order warranting an interference under article 227 of the Constitution of India.

CO No. 047 of 2019 is disposed of accordingly without any order as to costs.