Municipal Council. Hanumangarh vs Neeraj Kumar

These appeals are directed against the judgments & decrees dated 04.02.2014 passed by the Additional Civil Judge (Jr.Div.), Hanumangarh and judgments & decrees dated 21.08.2018 passed by the Additional District Judge No.2, Hanumangarh, whereby the suits for permanent injunction filed by the respondents-plaintiffs have been decreed and the appeals filed by the appellant have been dismissed as barred by limitation.

The respondents filed the suits for permanent injunction. After trial, the suits were decreed by the trial court by judgment dated 04.02.2014. Against the judgment dated 04.02.2014, the appeals were filed on 16.11.2016 i.e. after 02 years & 07 months.

Alongwith the appeal, application under Section 5 of the Limitation Act was filed, inter-alia, with the averments that the officers of the Municipal Council were busy in removing the encroachments and other administrative work and as the sanction was not received from the concerned department, the appeal could not be filed in time and therefore, the delay be condoned.

The application was contested by the plaintiff, inter-alia, with the submissions that the work of removal of encroachment was for a day only, the appropriate affidavit has not been filed, no sanction was required and that the appellant was regularly appearing in the execution proceedings and was seeking time for filing the objections and ultimately, on the date, the appeal has been filed, objections have also been filed in the execution proceedings, huge delay of 02 years & 07 months has not at all been explained and therefore, the application deserves to be dismissed.

The trial court, after hearing the parties, came to the conclusion that the reasons given were baseless and despite appearing in the execution proceedings, time was being sought and as such, it cannot be said that the appellant was unaware of passing of the decree and therefore, it was not entitled for condonation of delay and consequently, dismissed the application under Section 5 of the Limitation Act.

Learned counsel for the appellant vehemently made the submissions that the first appellate court was not justified in rejecting the application under Section 5 of the Limitation Act, inasmuch as, the delay occurred on account of administrative exigencies and that as the appellant is a Government organization, it has to depend on its officers and it cannot be made to suffer for inaction of its officers and therefore, the delay ought to have been condoned by the first appellate court.

Submissions were sought to be made on the merits of the decree passed by the trial court.

Learned counsel for the respondents opposed the submissions.

It was submitted that a huge delay of 02 years & 07 months is sought to be taken very lightly and ipsi dixit reasons have been indicated that the officers were busy in removal of encroachment and administrative work and therefore, the first appellate court was justified in rejecting the application for condonation of delay, which does not require any interference in second appeal.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

As already noticed herein-before, the first appeal was filed with a delay of 02 years & 07 months and a very cursory application was filed with a spacious plea that the officers were busy in removal of encroachment and administrative work, which led to delay in filing of the appeal. However, it has come on record that the appellant was regularly appearing before the executing court and was seeking time to file objections and as such, the plea raised seeking to explain a huge delay of 02 years & 07 months cannot be countenanced.

The submissions made based on the appellant being a Government body and the officers being negligent cannot be a reason enough in absence of any material to indicate that the responsible officers have been proceeded against by the appellant for their alleged negligence.

The Hon'ble Supreme Court in Postmaster ageneral & Ors. v. Living Media India Limited & Anr. : (2012) 3 SCC 563, where the delay in filing the Special Leave Petition was 427 days i.e. about 01 year & 02 months, after considering several judgments on the issue, inter-alia, laid down as under :-

"28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. "

The above judgment takes care of the submissions sought to be made by learned counsel for the appellant.

In view of the above discussion, the first appellate court was justified in rejecting the application filed by the appellant under Section 5 of the Limitation Act seeking condonation of delay of 02 years & 07 months and the said order does not give rise to any substantial question of law.

Consequently, the appeals have no substance, the same are, therefore, dismissed.