Murtoo Devi vs Financial Commissioner (Appeals)

Rajiv Sharma, J.—The petitioners approached the Assistant Collector First Grade, Kasauli for correction of entries in the revenue record. These proceedings were entertained as Suit, u/s 58(3)(e) of the H.P. Tenancy and Land Reforms Act, 1972. The issues were framed by learned Land Reforms Officer, Tehsil Kasauli on 20.08.1994. Learned Land Reforms Officer, Tehsil Kasauli passed the judgment and decree in favour of the petitioners on 03.03.1997. The petitioners were declared as non-occupancy tenants on the land comprising Khasra Nos. 7,8,9,10,17/13, 11 & 14 plots 7, measuring 13-14 bighas, situate in Village Dwali, Tehsil Kasauli, entered in Khewat No. 1, Khatauni No. 1 of Jamabandi for the year 1992-93.

The respondent No. 2 filed an appeal bearing No. 4/07 of 1998 against the judgment and decree, dated 03.03.1997, before the District Collector, Solan, District Solan, H.P. alongwith an application, u/s 5 of the Limitation Act, 1963, for condonation of delay. The petitioners filed a detailed reply to application u/s 5 of the Limitation Act, 1963. The District Collector, Solan District, Himachal Pradesh dismissed the appeal on 25.09.2001.

The respondent No. 2 preferred a revision petition u/s 63 of the H.P. Tenancy and Land Reforms Act, assailing the order passed by the learned District Collector, Solan District, Himachal Pradesh in Case No. 4/07 of 1998, decided on 25.09.2001 before the respondent No. 1, i.e., Financial Commissioner (Appeals), Himachal Pradesh, Shimla. It was assigned Revision Petition No. 08/2002. The revision petition No. 08/2002 was decided by respondent No. 1 on 18.10.2005. Learned Financial Commissioner (Appeals), set aside the order of Assistant Collector, 1st Grade and the order passed by the Collector, District Solan, H.P. Petitioners challenged the order, dated 18.10.2005, by filing CWP No. 1222 of 2005 in this Court, which was allowed on 30.11.2007. The order, dated 18.10.2005, was set aside and the matter was remanded back to the Financial Commissioner (Appeals) to decide the revision petition afresh, in accordance with law. The judgment, dated 30.11.2007, was assailed by respondent No. 2 by filing LPA No. 04 of 2008, which was dismissed by a Division Bench of this Court on 04.04.2008. The respondent No. 1 was directed to decide the revision within a period of six months from the date of receipt of the certified copy of the judgment. Learned Financial Commissioner allowed the revision and condoned the delay and remanded the matter to the Collector to hear/decide the same on merits after giving opportunity to both sides, vide order, dated 23.07.2008. Hence this petition.

Mr. Bhupender Gupta, learned Senior Advocate, has vehemently argued that respondent No. 1 has condoned the delay in filing the appeal merely on the basis of conjectures and surmises. He also argued that the facts taken into consideration by the learned Financial Commissioner, were not even stated in the application for condonation of delay in filing the appeal. According to him, the grounds mentioned in the application were insufficient to indicate good and sufficient cause for condonation of delay in filing the appeal. He further contended that the respondent No. 2 was fully aware of the judgment and decree passed by the Land Reforms Officer, dated 03.03.1997. He lastly contended that the judgments relied upon by the learned Financial Commissioner while condoning the delay, were not applicable in the facts and circumstances of the case.

Mr. Ajay Kumar, learned Senior Advocate, has supported the order, dated 23.07.2008

I have heard the learned counsel for the parties and gone through the records and pleadings carefully.

What emerges from the facts enumerated hereinabove, is that the petitioners have approached the learned Assistant Collector First Grade, Kasauli for correction of entries in the revenue record vide Case No. 6/XIII of 1993 on 15.05.1993. The proceedings were converted into Suit, u/s 58(3)(e) of the H.P. Tenancy and Land Reforms Act, 1972. The judgment and decree was passed by the learned Assistant Collector, 1st Grade, Tehsil Kasauli, District Solan, Himachal Pradesh, exercising the powers of Land Reforms Officer on 03.03.1997. The respondent No. 2 has challenged the judgment and decree, dated 03.03.1997 by filing Case No. 4/07 of 1998 before the District Collector, Solan District, Himachal Pradesh. It was barred by 215 days. An application was filed for condonation of delay. According to respondent No. 2, she was earlier residing at 5, Sunehari Bag Road, New Delhi at the official residence, but that residence was vacated prior to the passing of the judgment and decree. She was proceeded ex parte and on account of communication gap, she remained unaware about the ex parte order and the passing of the impugned judgment and decree by the learned trial Court. She came to know about the judgment and decree in the 1st week of November, 1997 and after making inquiries, she applied for certified copy of the judgment and decree on 03.11.1997. The copy was supplied on 26.11.1997. Thereafter, the appeal was filed against the judgment and decree, dated 03.03.1997. The issues were framed, as noticed hereinabove, by the Land Reforms Officer on 20.08.1994. Shri Rajveer Singh, Advocate has cross-examined the witnesses of the non-applicants on 21.01.1995 and 06.06.1996. The evidence of the petitioners was closed on 06.06.1996. Shri Rajveer Singh, Advocate, appearing on behalf of respondent No. 2, undertook to produce the witnesses on 20.07.1996. The evidence was not produced on 20.07.1996. Her counsel Shri H.D. Tanwar, sought for a last opportunity for producing the evidence on 20.08.1996. Again, no evidence was produced and one more last opportunity, as requested, was granted for 23.09.1996. No evidence was led on this date. However, learned counsel for respondent requested for third last opportunity, which was granted subject to costs of Rs. 100/- and the matter was listed on 18.10.1996 for evidence. Even on 18.10.1996, neither any evidence nor any appearance was put in on behalf of respondent No. 2. The respondent No. 2 was proceeded ex-parte on 18.10.1996. The cost was also not deposited, as ordered on 23.09.1996. Thus, it cannot be said that respondent No. 2, was not aware of the proceedings pending before the Land Reforms Officer.

On 07.10.1997, the petitioners have moved an application before the Court of Assistant Collector, 1st Grade-Cum-Land Reforms Officer, Kasauli for the attestation of mutation. On 07.10.1997, the Land Reforms Officer, Kasauli passed an order for summoning the respondent No. 2 for 23.10.1997. The respondent No. 2 was summoned vide dispatch No. 1266, dated 14.10.1997, by means of Registered A.D. post. The respondent No. 2 was duly served for this date, i.e., 23.10.1997 at 5 Sunehari Bag Road, New Delhi. She engaged M/s. Rajiv Kataria and K.S. Rupal, Advocates for prosecuting her case on 23.10.1997. Shri Kartar Singh, Clerk of M/s. Rajiv Kataria and K.S. Rupal, Advocates had appeared before the Court and requested for adjournment. The case was adjourned for 03.11.1997. Shri Rajiv Kataria, Advocate appeared on behalf of respondent No. 2 on 03.11.1997 and requested for adjournment of the case for 06.12.1997. In fact, the application for condonation of delay was filed on 28.11.1997. Even on 06.12.1997, neither the applicant nor her counsel was present. Ultimately, on 23.12.1997, the matter was put-up in the Jalsae aam at dhar-ki-bed, Dharampur. It was ordered that since the respondent No. 2 was not present despite due knowledge and various intimations, the mutation was sanctioned in favour of the petitioners.

Learned District Collector, Solan District, Himachal Pradesh, while dealing with the application preferred u/s 5 of the Limitation Act by respondent No. 2, has passed a reasoned and speaking order on 25.09.2001. He has taken into consideration the relevant orders passed before and after the judgment and decree, dated 03.03.1997. However, the learned Financial Commissioner (Appeals), in his order, dated 23.07.2008, has taken into consideration the facts, which were not even mentioned in the application preferred by the respondent No. 2 before the District Collector, Solan. Learned Financial Commissioner has observed in his order that the older women in this country are generally not well conversant with the ways of the world and much less of legal procedures and limitations. Such persons are dependent upon others for most things, more so, in litigation matters and such a person should not be treated in the same manner as an ordinary litigant, but due attention should be given to her circumstances of being a woman old in age and widow. The Financial Commissioner has to decide the case on merits and not on sentiments. The respondent No. 2 was fully aware of the proceedings pending before the learned Land Reforms Officer. The issues were framed. The witnesses of the petitioners were cross-examined by her counsel. Her counsel has taken repeated adjournments to produce the evidence. However, no evidence was produced. Ultimately, she was proceeded ex-parte on 28.10.1996. She has engaged battery of lawyers to protect her interests. She was also aware of the judgment and decree, dated 03.03.1997. She has been served at the old address, i.e., at 5 Sunehari Bag Road, New Delhi. When the proceedings were initiated for attestation of mutation, she engaged Shri Rajiv Kataria, Advocate. He has put in appearance on 23.10.1997, before filing of the application u/s 5 of the Limitation Act. It cannot be said that, respondent No. 2 is an ignorant lady. Learned Financial Commissioner has also erred in holding that lawyers are not available at Kasauli Rs. . The lawyers are available at Kasauli. The Court has failed to understand how the learned Financial Commissioner has come to the conclusion that the Advocates from District Headquarter are reluctant to go to the Court of Tehsildar, Kasauli. Learned Financial Commissioner could not be oblivious to the valuable rights which had accrued in favour of the petitioners vide judgment and decree, dated 03.03.1997. He has not discussed the entire facts and was swayed by the fact that the respondent No. 2 was widow and she had already shifted her residence. However, the fact of the matter is that the respondent No. 2 was throughout aware of the proceedings pending before the competent authority.

It is settled law that the Courts should be liberal in condoning the delay, but at the same time, if there is inordinate delay, the same cannot be mechanically condoned. The grounds taken in the application for condoning the delay, in the considered opinion of the Court, do not constitute "sufficient/good cause" to condone the delay. Moreover, the grounds taken in the application u/s 5 of the Limitation Act, are contrary to the material placed on record.

Their Lordships of the Hon''ble Supreme Court in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, have held that the liberal approach should be adopted in condoning the delay of short duration and stricter approach in cases of inordinate delay. Their Lordships have held as under:

"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate- Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , N. Balakrishnan Vs. M. Krishnamurthy, and Vedabai @ Vaijayanatabai Baburao Pateil Vs. Shantaram Baburao Patil and Others, . In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay- G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , State of Haryana Vs. Chandra Mani and others, , State of U. P. and others Vs. Harish Chandra and others, , State of Bihar Vs. Ratan Lal Sahu and Others, , State of Nagaland Vs. Lipok AO and Others, , and State (NCT of Delhi) Vs. Ahmed Jaan, .

Their Lordships of the Hon''ble Supreme Court in Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, have held that liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. Their Lordships have held as under:

"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause u/s 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, .

The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."

"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.

This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders.

We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."

Accordingly, the writ petition is allowed. The order, dated 23.07.2008, passed by the Financial Commissioner (Appeals), H.P., is set aside. No costs.