Lal Bahadur Singh and Another vs Prescribed Authority and Others

Anil Kumar, J.—By means of present writ petition the petitioners has challenged the order dated 28.2.1983 passed by the respondent No. 1, Prescribed Authority, Ceiling Nanpara, District Bahraich and the order dated 3.10.1983 passed by the District Judge, Bahraich.

In brief facts are to the effect that notice u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred as ''Act'') was issued to the respondent No. 4. In the present case, the petitioner has purchased the land by means of sale deed dated 14.11.1952 and 29.11.1965 by the respondent No. 4. As such the petitioner has filed an objection to the notice issued u/s 10(2) of the Act.

However, by means of order dated 28.2.1983 the Prescribed Authority had rejected the objections of the petitioner and pass an order thereby declaring certain land of respondent No. 4 as surplus which had been purchased by the petitioner by means of two sale deeds (14.11.1952 and 29.11.1965).

Aggrieved by the said order the petitioner has filed an appeal before the respondent No. 1 along-with an application for condonation of delay u/s 5 of the Limitation Act.

By means of order dated 3.10.1983 the respondent No. 2 has rejected the petitioner''s application on the ground that the petitioner has not explained the day to day delay in filing the appeal.

Orders dated 3.10.1983 and 28.2.1983 passed by respondent Nos. 2 and 1 respectively was challenged by the petitioner before this Court.

Heard Dr. L.P. Misra, learned Counsel for the petitioners and Sri Nirmal Tewari, learned Additional Standing Counsel.

From perusal of the impugned order dated 3.10.1983 it is evident that appeal of the petitioner was dismissed on the ground that the petitioner has not explained the day to day delay in moving the application for condonation of delay in filing appeal.

In the matter of condonation of delay the Apex Court has constantly held that the pragmatic view should be taken. In the case of Collector, Land Acquisition v. Mst. Kati Ji and Ors. reported in 1987 (13) ALR 306 (SC) held as follows:

The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy.

And such a liberal approach is adopted on principle as it is realized that:

Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would he decided on merit after hearing the parties.

"Every" day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay ? The dectrine must be applied in a rational, common sense and pragmatic manner.

When substantial justice and technical considerations are pitted against each other, the 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.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact, he runs a serious risk.

It must be grapped that the 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."

In N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 SCC 133 the Apex Court explained the scope of limitation and condonation of delay, observing as under:

The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy.

In Shankarrao Vs. Chandrasenkunwar, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.

In Vedabai @ Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and Ors. reported in 2001 (44) ALR 577 (SC) the Apex Court made a distinction in delay and inordinate delay observing as under:

In exercising discretion u/s 5 of the Limitation Act, the Courts 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. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach....

In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, , Hon''ble Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The express "sufficient cause" should receive a liberal construction.

In Shakuntala Devi Jain Vs. Kuntal Kumari and Others, the Hon''ble Supreme Court held that unless want of bona fides 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 can not be refused to be condoned.

In O.P. Kathpalia Vs. Lakhmir Singh (Dead) and Others, the Hon''ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

For the foregoing reasons the impugned action on the part of the respondent No. 2 thereby rejecting the petitioner''s application for condonation of delay in filing appeal on the ground that the petitioner has not explained the day to day delay is totally unreasonable and unwarranted rather arbitrary in nature.

Accordingly, the order dated 3.10.1983 passed by the District Judge, Bahraich (respondent No. 2) is hereby set aside. The present writ petition is allowed.

The matter is remanded back to the appellate authority concerned with the direction that the said authority will decide the appeal in question after giving opportunity of hearing to the parties concerned in accordance with law within a period of six months from the date of production of certified copy of this order before him.

It is made clear that this Court has not adjudicated the claim of the petitioner on merits.