Mallikarjun vs Nazhat Shaheen and Others

A.N. Venugopal Gowda, J.—O.S. No. 140/2001 filed by the respondent was decreed on 14.07.2008 by the Civil Judge (Jr. Dn.) Shorapur. The appellant was restrained for making any construction over the suit ''AB'' way or dumping any waste in ''CD'' way property. That apart, he was directed to demolish the construction made to the east of his house, covered with tin shed and clear the public way within 30 days of the order. Assailing the said decree, defendant/appellant filed R.A. No. 73/2009 in the Court of Senior Civil Judge at Yadgir. The appeal having been dismissed by the judgment and decree dated 02.09.2010, this appeal was filed.

The Appellate Judge has held that the case stated in I.A. 1 filed seeking condonation of delay in filing the appeal cannot be believed and that sufficient cause for condonation of delay having not been shown, I.A. 1 is liable to be dismissed. He has also dismissed the appeal on merit.

This second appeal was admitted on 03.11.2015, to consider the following substantial questions of law:

Whether the Court below has acted arbitrarily and illegally in dismissing the appeal on the ground of delay?

Whether the impugned judgment and decree passed by the Court below is perverse and illegal as case of the parties has not been examined but still appeal has been dismissed as devoid of merit?

Whether the objection was filed or not i.e., to I.A. 1, before the Court below, is not forthcoming from the impugned order. Without considering whether the facts stated in I.A. 1 constitute sufficient cause for condonation of delay, I.A. 1 has been dismissed. In case I.A. 1 filed for condonation of delay had been opposed, the Court below ought to have recorded the evidence on I.A. 1 and thereafter, decided the matter. There is procedural impropriety in dismissing I.A. 1 in not providing an opportunity of hearing the applicant to adduce evidence. Thus there is miscarriage of justice.

Even otherwise, the appeal could not have been dismissed on merit, without appreciating the rival contentions. If the appeal was barred by limitation, the lower appellate Court being the final Court of facts, it was unnecessary to decide the appeal on its merit. On any view of the mater, the impugned judgment is vitiated.

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , Apex Court made departure from the earlier judgments in its strict interpretation, as was placed on expression "sufficient cause" and has held as follows:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 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 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 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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the ''State'' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

The expression "sufficient cause" used under Section 5 of the Limitation Act is elastic enough to enable the Court to apply the law meaningfully, which serves the ends of justice. However, no hard and fast rule can be laid down for deciding the application for condonation of delay. But over the years, Apex Court and this Court have repeatedly observed that a liberal approach needs to be adopted in the matter of condonation of delay, unless there is gross and culpable negligence on the part of the applicant or third party rights having accrued or the opposite party can not appropriately be compensated.

The Court below has decided I.A. 1, without conducting enquiry and keeping in view well settled principles of law, in the matter of condonation of delay i.e., in exercising the power, under Section 5 of the Limitation Act. The approach adopted in deciding I.A. 1 is pedantic and is against the settled principles. Hence, the impugned judgment and decree being vitiated, is liable to be interfered with.

Substantial questions of law raised in the matter, noticed supra, stand answered accordingly.

In the result, appeal is allowed and the impugned judgment and decree is set aside. Consequently, R.A. No. 73/2009 is restored to the file of Senior Civil Judge at Yadgir. Enquiry in respect of I.A. 1 be held and the matter be decided with expedition.

Both the parties are directed to appear in the Court of the Senior Civil Judge at Yadgir, on 19.12.2015 and receive further orders.