Farooque Ahmed vs State of U.P. and Another

D.N. Jha, J.—The short question involved in this writ petition under Article 226 of the Constitution is that the learned Commissioner, Lucknow Division, Lucknow, in rejecting the application u/s 5, Limitation Act, erred in exercise of jurisdiction and thereby the petitioner was denied the vested right of hearing by the learned appellate Court.

I have heard the learned counsel for the parties. The appeal preferred against the order passed by the District Magistrate, Unnao, was undoubtedly beyond time by 1 month 20 days. The petitioner feeling aggrieved by the order of the District Magistrate, Unnao, preferred an appeal before the Commissioner, Lucknow Division, Lucknow, along with an application u/s 5, Limitation Act, for condonation of delay in filing the appeal. This application was duly supported by an affidavit sworn by the petitioner himself. The District Magistrate had cancelled licences for D. B. B. L. and S. B. B. L. guns. The petitioner was involved in a case under Sections 395/397 I.P.C. Thereafter some proceedings were drawn for cancellation of the licences. The petitioner was acquitted vide order dt. 11-10-1983 but that order was not placed for consideration before the District Magistrate. The District Magistrate has only mentioned in his order that in the village there is Parly Bandi, therefore, apprehension of breach of the peace can arise at any moment and he was of the view that it was not necessary for the continuation of the licence of these guns with the petitioner. It does not transpire if the other party was also in possession of guns and any steps had been taken to cancel their licence as well. However, it is not for this Court to enter into the merits as the matter is directly and substantially involved in the appeal.

The short question that has been canvassed is that the learned Commissioner committed jurisdictional error in exercise of discretion in rejecting the application moved by the petitioner for condonation of delay u/s 5, Limitation Act. On the other hand, the learned counsel for the State contended that this was a case of inaction and delay was rightly not condoned. In Shib Dayal and Another Vs. Jagannath Prasad, it has been held that an honest though negligent mistake on the part of a counsel was a sufficient cause for extending the period of limitation u/s 5, Limitation Act. In Dinbandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411 it was held that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice. In Ramji Dass v. Mohan Singh 1978 ARC 496 (1) (SC) it was observed by the Supreme Court that court''s discretion should be exercised in favour of hearing and not to shut out hearing. In the The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, it was observed :--

"The legal position when a question arises u/s 5, Limitation Act is fairly well settled. It is not possible to lay down precisely as to what facts or matters would constitute ''''sufficient cause" u/s 5, Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party''s negligence in not taking necessary steps which he could have or should have taken".

It was pointed out that "discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice and the words "sufficient cause" should receive a liberal construction so as to advance substantial justice." In the instant case in view of the facts stated in the affidavit and a photostat copy of the medical certificate with respect to illness which has also been produced in this Court indicates that the Court failed to apply its mind to adjudge whether sufficient cause has been shown -by the petitioner for condonation of delay. It is not for this Court to substitute its own discretion but the Court has to see whether there was application of mind and the exercise of discretion was judicially made. In my opinion, both these facts are wanting in the instant case. The order rejecting the application u/s 5, Limitation Act, for condoning the delay while presenting the appeal cannot be sustained.

In the result I allow this petition and quash the order passed by the learned Commissioner rejecting the application for condonation of delay. The learned Commissioner will restore the application and dispose it of in the light of observations made by the Supreme Court in the various decisions where it has been pleased to condone the delay of even one year. Mandamus is issued accordingly to rehear the application.