Luxmi Kant vs Deputy Dpector of Consolidation and Others

Devi Prasad Singh, J.

Heard learned counsel for the parties.

What is "sufficient cause" and when an application for condonation of delay filed in support of an appeal or an application should be allowed, is the question involved in the present writ petition.

The present writ petition has been preferred by the petitioner under Article 226 of the Constitution of India against the judgment and order passed by the learned Settlement Officer of Consolidation as well as learned Deputy Director of Consolidation by which they have declined to condone the delay in entertaining the appeal as well as revision filed under the Consolidation of Holdings Act. According to the petitioner, he was the recorded tenure holder of chak No.480 consisting of plot No. 102/1 situated in Village Patihan, Pargana and Tahsil Palia, District Lakhimpur Kheri. Feeling aggrieved with the allotment of chaks by AGO petitioner had filed an objection under Section 9 of the CH Act on the ground that plot No. 102/2 and 104/5 are the Uran chaks The objection filed by the petitioner was rejected by the Consolidation Officer by an order dated 15.3.1980 While preferring the present writ petition the order of the Consolidation Officer has not been filed on the ground that the same is not traceable Against the order dated 15.3.1980, petitioner had filed an appeal in pursuance to provisions contained in Section 21(2) of the CH Act on 10 5.1989 AD application under Section 5 of the Limitation Act was also filed by the petitioner along with the appeal. A defence was taken by the petitioner before the Settlement Officer of Consolidation that before the Consolidation Officer fraud was played by some imposters and when some persons had tried to enforce the order of the Consolidation Officer he has come to know regarding the judgment. The appellate authority has recorded a finding that the cause shown by the petitioner was not believable as no person will take steps for change of plots in terms of order passed by the Consolidation Officer after lapse of almost 8 years. Accordingly, the appellate authority declined to condone the delay and appeal was dismissed as time barred.

Feeling aggrieved with the judgment and order dated 26.2.1990 passed by the Settlement Officer of Consolidation petitioner filed a revision on 11. 6. 1997 i.e. after lapse of almost 7 years. Learned Deputy Director of Consolidation had rejected the revision on the ground that cause shown by the petitioner was not sufficient. Thus, not only at appellate stage but at the revisional stage also petitioner had filed time barred revision after inordinate delay which was dismissed in the manner discussed hereinabove.

A perusal of the application filed under Section 5 of the Limitation Act before the Learned Deputy Director of Consolidation indicates that the petitioner had not filed revision within the time since the counsel has informed him that original holding has been provided to him. Only on 1.6.1997 when the petitioner was prevented to do the cultivatory work by the respondents he has come to know that his appeal has been dismissed. For convenience Para 2 and 3 of the application (Annexure4) by which delay has been explained for preferring the revision under Section 48 of CH Act, are being reproduced here as under:

A perusal of the memo of the revision as well as application filed by the petitioner for condonation of delay shows that petitioner has not explained before the learned Deputy Director of Consolidation relating to the delay caused in filing of the appeal satisfactorily. The explanation given for delayed filing of the revision seems to be vague.

According to the petitioner, private respondents had tried to dispossess him on 8.2.1997 from his original holding then he came to know that Settlement Officer of Consolidation has dismissed the appeal. In case petitioner''s counsel had informed him that appeal has been allowed then why the petitioner has not obtained the certified copy of the order of the appellate Court for about seven years. Petitioner has not indicated the name of the counsel who has informed him that appeal has been allowed. Identical plea seems to have been taken by the petitioner while filing the appeal after lapse of almost 9 years. Thus, it appears that petitioner had tried to file appeal on vague ground and when the appeal was dismissed he kept mum for about seven years and while filing the revision he had again not taken care to give specific reason and particulars for the condonation of delay.

The provisions contained in Section 5 of the Limitation Act requires that while approaching the Court after statutory period of limitation the appellant or the applicant should satisfy the Court that he or she had sufficient cause for not preferring the appeal or making the application within such statutory period. For convenience, Section 5 of the Limitation Act is reproduced as under:

"5. Extension of prescribed period in certain cases Any appeal or any application, other than an application under any of the provisions of order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

The provisions contained in Section 5 of the Limitation Act, though, should be construed liberally, keeping in view the facts and circumstances of a case, but it should not be forgotten that it extends certain statutory rights to the counterpart of a case from facing the plain of frivolous litigation. There should be finality of every controversy, that is why legislators to their wisdom has provided safeguard under Section 5 of the Limitation Act. Accordingly, it shall always be incumbent upon the appellant or applicant to show the "sufficient cause" by specific pleading for creation of ground to condone the delay in preferring the appeal or application. The mode of explanation or narration of sufficient cause may vary from case to case. It may be expected that day to day delay should be explained categorically. But from illiterate person or rustic villagers the explanation may be moderate with certain flexibilities but it does not mean that without any reasonable explanation of delay a presumption may be assumed to record a finding that cause has been shown sufficiently. There must be some material on record while showing the sufficient cause in the application filed under Section 5 of the Limitation Act to indicate that the appellant or applicant had acted bondfidely and genuinely while preferring an appeal. Genuineness and bonafide of the application filed under Section 5 of the Limitation Act may be gathered from the surrounding facts and circumstances of a particular case.

Section 5 of the Limitation Act empowers the Courts to condone the delay on sufficient cause, to provide substantial justice to the parties and while considering the sufficient cause it is settled law that Courts should be liberal. In a case reported in AIR 1960 SC 260, Sitaram Ramcharan and others v. M.N. Nagrashana Authority. Hon''ble Supreme Court held that "sufficient cause must cover the whole period of delay". It shall be incumbent upon the party to satisfy the Court that he had sufficient cause for not preferring the appeal or making application within prescribed time. Relevant portion from the case of Sitaram Ramcharan (supra) is reproduced as under:

"It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay."

In one another case reported in AIR 1969 SC 575, Shakuntala Devi Jain v. Kuntal Kumari and others. Hon''ble Supreme Court held that the word "sufficient cause" should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. For convenience, relevant portion from the case of Shakuntala Devi Jain (supra) is reproduced as under:

"The next question is whether the delay in filing the certified copy or, to put it differently, the delay in refiling the appeal with the certified copy should be condoned under Section 5 of the Limitation Act. If the appellant makes out sufficient cause for the delay the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan, (1890) ILR 13 Mad 269, 271 "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood, the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant."

In the case reported in AIR 1974 SC 650, Balbir Singh v. Bogh Singh, where the prosecution filed appeal in wrong Court, Supreme Court held that delay should be condoned in preferring the appeal before the appropriate forum. In the case reported in AIR 1972 SC 749. State of W.B. v. The Administrator. Howrah Municipality and others etc., the Hon''ble Supreme Court held that sufficient cause should receive liberal construction so as to advance substantial justice when no negligence or inaction nor want of bonafide is imputable to a party.

In a case relied upon by the petitioner''s counsel reported in 1987 (2) SCC 107. Collector, Land Acquisition. Anantnag and others v, Mst, Katiji and others their Lordships of Apex Court held that Court should adopt liberal and justice oriented approach for the purposes of condonation of delay. Relevant portion from the case of Mst. Katiji (supra) is reproduced as under:

"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 be decided on merits 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 doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

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

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

In another case reported in 1994 (Supp.) 2 SCC 195, Ex. Capt. Harish Uppal v. Union of India and others, where the controversy was relating to entertainment of a petition filed under Article 226 of the Constitution of India the Hon''ble Supreme Court held that parties should pursue right promptly and not sit over their rights The party could not be permitted to sleep over their rights and choose to avail the remedy after inordinate delay. Relevant portion from the case of Ex. Capt. Harish Uppal (supra) is reproduced as under:

"It is a well settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the Limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the Court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. We cannot say that the High Court was not entitled to say so in its discretion."

However, in one another judgment reported in 1997 (7) SCC 556, P.K. Ramachandran v. State of Kerala and another, their Lordships has cautioned the High Court not to condone the delay in a mechanical manner while deciding the issue relating to application filed under Section 5 of the Limitation Act. Relevant portion from the case of P.K. Ramachandran (supra) is reproduced asunder:

"3. It would be noticed from a perusal of the impugned order that the Court has not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay."

Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extent the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside."

In the case of P.K. Ramachandran (supra) their Lordships of Apex Court had declined to condone the delay of 565 days on the ground that appellant had failed to explain the day to day delay in filing the appeal.

In a recent judgment reported in 2005 (8) SCC 709, State of Karnataka v. Lamuman the Lordship of Hon''ble Apex Court had declined to extend the benefit of Section 5 of the Limitation Act where rights of party have been extinguished by a fiction of law in a land acquisition matter.

In one another case reported in 2006 LCD 373, P. Mani Moopanarv. K. Rajammal and others Hon''ble Supreme Court held that sufficiency of cause must be shown before condoning the delay more so when it is inordinate delay of 2598 days.

In a case reported in 2001 (6) SCC 176, M.K. Prasad v. P. Arumugam, the Hon''ble Supreme Court held that while construing the provisions of Section 5 of the Limitation Act we should keep in mind that after expiration of the period of limitation prescribed for filing an appeal, a right is created in favour of decree holder to treat the decree as binding and that is why discretion to condone the delay has been given to the Courts. Relevant portion from the judgment of M.K. Prasad (supra) is reproduced as under;

"In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This 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."

Again their Lordships in the case ofM.K. Prasad (supra) proceeded to held as under:

"Again in State of W.B. v. Administrator. Howrah Municipality and Q Ramegowda. Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay."

However, retreating (sicreiterating) the same principle in a case reported in 2003 (11) SCC 728, Bhaamal v. M.P. Cooperative Marketing & Consumer Fedration Ltd, and others, the Hon''ble Supreme Court proceeded to hold as under:

"Normally the High Courts would be wary in interfering with an order passed in the exercise of a discretion conferred by law particularly when such discretion was exercised to enable a party to pursue his statutory remedy or appeal. No doubt the discretion has to be exercised judicially. There is again no doubt that the delay in filing the appeal was apparently very long. Nonetheless the High Court in exercising writ jurisdiction should have been slow to upset a benefit granted to a party in having his statutory remedy to be pursued by condoning the delay albeit its length."

In a recent judgment reported in 2005(3) SCC 752, State of Nagaland v. Lipok AO and others, the Hon''ble Supreme Court while retreating (sicreiterating) the aforementioned principle held that proof of sufficient cause is condition precedent for the exercise of extraordinary restriction vested in the Court. Length of delay in filing the appeal or revision is not material but the sufficiency of cause and shortness of delay is one of the circumstances which will be taken into account. Relevant portion from the judgment of Lipok AO (supra) is reproduced asunder:

"The proof of sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion In N. Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient."

In the case of Lipok AO (supra) the Hon''ble Supreme Court after considering its earlier pronouncements relating to the determination of the sufficient cause held that the sufficient cause must be bonafide and filing of time barred appeal, revision or application is not merely a device to cover an ulterior purpose. Relevant portion from the judgment of Lipok AO (supra) is reproduced as under:

"9. What constitutes sufficient cause cannot be laid down by hardandfast rules. In New India Insurance Co. Ltd, v. Shanti Misra this 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 expression "sufficient cause" should receive a liberal construction. In Brijlndar Singh v. Kanshi Ram it was observed that true guide for a Court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had 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 cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd, v. Nirmala Devi which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive."

It is settled law that Court can iron out the fabric but it cannot change the texture of fabric. It cannot enlarge the scope of the legislation or the intention when the language of the provision is plain and unambiguous. It cannot add orsubstract words to a statute or read something into it which is not there. It is well settled that the real intention of the legislature must be gathered from the language used, (vide 2003 (2) SCC 577, Nasiruddin and others v. Sitaram Agarwal).

Keeping in view law laid down by Apex Court referred and discussed hereinabove coupled with the provisions contained in Section 5 of the Limitation Act the Court should always be cautious that the provisions of Section 5 of the Limitation Act may not be abused with oblique motive. Application should be based on correct facts with bonafide intention. A party invoking the jurisdiction conferred by Section 5 of the Limitation Act should not be permitted to abuse the process of law.

Keeping in view the various Apex Court judgments particularly rendered by the larger Bench of Hon''ble Supreme Court it is borne out that the Courts should adopt liberal approach while considering the sufficient cause for the purposes of condonation of delay in preferring an application or revision. But while doing so the Courts must record a finding that applicant or the appellant had acted bonafidely and reasonably explained whole period of delay. The Courts should also record a finding that applicant or the appellant had acted bonafidely and made necessary efforts to approach the Court at earliest possible time. All precautions should be taken by the Courts while considering the application for condonation of delay with specific finding while considering the "sufficient cause" so that a person may not be permitted to abuse the process of law. Any evidence, material or the circumstance which may reveal that appellant or the applicant had availed the statutory remedy after inordinate delay deliberately as a mode of dilatory tactics, malafidely to abuse the process of law shall be sufficient to reject the application for condonation of delay. Though short term delay may be condoned liberally but strict scrutiny of facts, circumstances and evidence should be done when an appeal or application is filed after inordinate delay.

It shall be also necessary for the Courts to be careful while considering an application filed under Section 5 of the Limitation Act to see that the time barred appeal or revision or an application is not filed with intention to cover the ulterior purpose.

Keeping in view the moral devaluation in society and allegations relating to involvement of castism, corruption and malpractices in the functioning of system, to some extent, passing of a cryptic order without discussing the evidence, material and argument advanced by the parties'' counsel while rejecting or allowing an application under Section 5 of the Limitation Act shall not be permissible. Every judicial or quasijudicial authority while deciding an application under Section 5 of the Limitation Act must discuss the evidence and material on record as well as the argument advanced by the counsel for the parties.

In the present case it has not been disputed that an appeal under Section 11 (1) of U.P.C.H. Act was filed after lapse of almost 9 years. Thereafter revision was filed under Section 48 of the CH Act after lapse of almost 7 years. While approaching this Court no material has been brought on record relating to delay caused in filing of appeal after lapse of almost 9 years. The reason assigned for filing of revision after lapse of almost 7 years is also vague and apparently seems to be unnatural. Neither name of the counsel has been mentioned nor it has been stated that when alteration took place in the revenue records. Virtually no material has been placed by the petitioner which may be termed as reasonable explanation of delay in filing of appeal or revision. Cause shown does not seem to be sufficient. There seems to be deliberate inaction on the part of the petitioner in filing the appeal as well as revision. It shall not be appropriate to condone the delay after lapse of almost 16 years in absence of any material on record which may be termed as "sufficient cause".

In view of above, present writ petition is devoid of merit, hence dismissed inlimine. No order as to costs.

(Petition dismissed)