Madhyamik Shisha Parikshad vs The Additional District Judge, Court No. 17 and Others

Rajes Kumar, J.—Heard Sri J.S. Tomar, learned Standing counsel appearing on behalf of petitioner and Sri M.D. Singh Shekhar, Senior Advocate, appearing on behalf of respondents.

It appears that respondent No. 3 filed a suit for correction of his date of birth. The said suit was decreed on 28.4.2006. The petitioner moved an application under Order 9 Rule 13 C.P.C. along with an application u/s 5 of the Limitation Act for recalling of the order dated 28.4.2006. The said application was rejected on 12.3.2008. Against the said order, the petitioner filed appeal on 28.5.2008 along with an application for condonation of delay. The application for condonation of delay was supported by an affidavit of Smt. Prabha Tripathi, Secretary, Madhyamik Shiksha Parishad, Uttar Pradesh, Allahabad in which it is stated that due to the examination in the months of March, 2008 and April, 2008, all the officers and employees were busy and, therefore, appeal could not be filed in time. The application for condonation of delay was rejected on the ground that certified copy of the order dated 12.3.2008 was received on 1.4.2008 while the appeal was filed on 28.5.2008. It is observed that the examination was over on 4.5.2008 and no explanation was given for the period after 4.5.2008. The application for condonation has accordingly been rejected. Being aggrieved by the order, the petitioner has filed the present writ petition.

With the consent of the parties, the present writ petition is being disposed of at this stage.

Learned Counsel for the petitioner submitted that while rejecting the application u/s 5 of the Limitation Act a pedantic view has been taken by the court below. He submitted that in the matter of condonation of delay, liberal and pragmatic view should be taken. He further submitted that there are so many formalities have to be performed after the closure of the examination, therefore, even if the examination was over but the officers were busy subsequently also. He submitted that there is no gross negligence on the part of the petitioner, therefore, the delay is liable to be condoned.

Sri M.D. Singh Shekhar, learned Counsel for the respondents submitted that the conduct of the petitioner may also be considered. He submitted that the petitioner has filed recall application beyond time and appeal has also been filed beyond time without giving proper explanation, therefore, the delay is not liable to be condoned. In support of the contention, he relied upon the decision of the Apex Court in the case of D. Gopinathan Pillai Vs. State of Kerala and Another, the Division Bench of this Court in the case of Adhishashi Abhiyanta Sharda Sahyak Khand, Azamgarh and Anr. v. Sheo Dass and Ors. reported in 1991 ALJ 1064 and the Division Bench of this Court in the case of State of U.P. and Ors. v. Hari Shanker Dubey reported in 2002 ACJ 35.

Having heard learned Counsel for the parties, I have perused the impugned order.

Certified copy of the order dated 12.3.2008 was received by the petitioner on 1.4.2008. The limitation to file the appeal was 30 days. It was filed on 28.5.2008 in effect that there was a delay of 27 days. It has been explained that due to examination in the months of March, 2008 and April, 2008 officers and employees were busy and, therefore, the appeal could not be filed. The explanation given by the petitioner cannot be said to be unreasonable.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

In the case of State of Haryana Vs. Chandra Mani and others, Apex Court held 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 axmomatic 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 or 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 Government 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-�-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 courts or whether cases require adjustment and should authorize 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 of condonation of delay.

In the case of Collector, Land Acquisition v. Mst. Kati Ji and Ors. reported in 1987 (13) ALR 306(SC) Hon''ble Supreme Court 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 subserves 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 be 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 hous''s delay, every second''s delay ? The doctrine 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 malafides. A litigant does not stand to benefit by resorting 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 Smt. Prabha v. Ram Prakash Kalra reported in 1987 (Supp) SCC 338 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 alias 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 other wise 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 Supreme 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 Briji Inder Singh v. Kanshi Ram reported in AIR 1917 PC 156 it was observed that true guide for a Court to exercise the discretion u/s 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala devi Jain v. Kuntal Kumari reported in 1969 AIR SC 575 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 cannot 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.

In State of Haryana Vs. Chandra Mani and others, Hon''ble Supreme Court considered large number of its earlier judgments including Binod Bihari Singh Vs. Union of India, M/s. Shakambari and Co. Vs. Union of India, Warlu Vs. Gangotribai and another, Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, Mata Din Vs. A. Narayanan, and held that expression "each day''s delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner."

The Apex Court has consistently held that in the matter of delay liberal view should be taken and not pedantic. Now coming to the decision cited by the respondents. In the case of D. Gopinathan Pillai v. State of Kerala and Anr. (Supra) , there was a delay of 3320 days and no explanation was given for such delay. On these facts, the Apex Court held that delay cannot be condoned merely on sympathetic ground, when mandatory provision not complied with and delay not properly, satisfactorily and convincingly explained.

In the case of Adhishashi Abhiyanta Sharda Sahyak Khand, Azamgarh and Anr. v. Sheo Dass and Ors. (Supra), the explanation was that the delay was on account of lawyer''s strike. The Court has refused to condone the delay in the absence of the statement that Chief Standing Counsel or Standing Counsel was also on strike. The Court come to the conclusion that the State failed to explain the delay.

In the case of State of U.P. and Ors. v. Hari Shanker Dubey (Supra), the Court has held that it is true that the application filed u/s 5 of the Limitation Act is to be liberally construed but such interpretation on construing liberally has to be made on the basis of the materials disclosed. If no material is disclosed, it is not possible to construe the petition liberally because very valuable rights of the other party are involved and the same cannot be ignored.

The decisions in the aforesaid cases are based on their facts and are distinguishable.

It is true that the explanation should be little more specific but on the facts and circumstances, it cannot be said that there was a gross negligence on the part of the petitioner.

In the facts and circumstances, the delay in filing the appeal is liable to be condoned.

In the result, the writ petition is allowed. The order dated 22.7.2009 is set aside. The matter is remanded back to the appellate authority to decide the appeal on merit expeditiously in accordance to law.