P.I. Industries Limited vs Commissioner, Trade Tax

Rajes Kumar, J.—The present revision u/s 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") is directed against the order of Tribunal dated April 13, 2006 relating to the assessment year 2004-05.

Brief facts of the case are that against the order of the first appellate authority dated January 29, 2005, which was served on the counsel on February 8, 2005, an appeal was filed before the Tribunal on February 21, 2006 beyond time by 287 days. Appeal was filed along with the application u/s 5 of the Limitation Act, 1963. The said application has been rejected by the impugned order. In the application u/s 5 of the Limitation Act, 1963 it was contended that by mistake of counsel an appeal could not be filed and when the applicant contacted his counsel for the preparation of the assessment case for the assessment year 2004-05, it was found that the appeal against the appellate order dated January 29, 2005 could not be filed. The earlier counsel, thereafter handed over the certified copy of the order to the applicant representative on February 20, 2006 thereafter, an appeal was filed on February 21, 2006. An affidavit of Sri Maharaj Singh Bhandari, authorised representative was also filed in support of the contentions made in the application u/s 5 of the Limitation Act. In the affidavit the name of earlier counsel Sri A.K. Singhal was disclosed. The Tribunal refused to condone the delay on the ground that no affidavit of the counsel was filed and no evidence has been adduced in support of the contention made in the application u/s 5 of the Limitation Act. Before this Court, affidavit of Sri A.K. Singhal, Advocate has been filed in which he has admitted that the copy of the appellate order was served upon him on February 8, 2005 and on account of omission on his part he could not inform about the receipt of the appellate order and when Sri Maharaj Singh Bhandari came for the preparation of the assessment case for the assessment year 2004-05, it was noticed that earlier appellate order dated January 29, 2005 was already in the file and the same was delivered on February 20, 2006.

Heard learned Counsel for the parties.

There is no dispute that the order of the first appellate authority dated January 29, 2005 relating to the assessment year 2004-05 was served on Sri A.K. Singhal, Advocate on February 8, 2005. In the affidavit Sri A.K. Singhal, Advocate admitted that he could not inform about the order to the applicant and when the representative of the applicant Sri Maharaj Singh Bhandari came for preparation of the assessment case for assessment year 2004-05, the original copy of the order was found available in the file which was delivered to Sri Maharaj Singh Bhandari on February 20, 2006. In the application u/s 5 of the Limitation Act supported by an affidavit of Sri Maharaj Singh Bhandari, it was contended that the appeal could not be filed within time on account of omission on the part of the earlier counsel. On these facts, in my view there was a reasonable cause for condonation of delay. The Tribunal while rejecting the application u/s 5 of the Limitation Act has taken pedantic view. The apex court has consistently held that in the matter of condonation of delay pragmatic view should be taken. In the case of Rafiq and Another Vs. Munshilal and Another, , the apex court held that the mistake on the part of the counsel is a reasonable cause.

The law of limitation is enshrined in the maxim interest reipublicae ut 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 Collector, Land Acquisition v. Mst. Katiji reported in [1987] 66 STC 228 : [1987] 13 All LR 306, the honourable Supreme Court held as follows:

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 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 realised 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 hour''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 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 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 Vs. M. Krishnamurthy, 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 tacties, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy.

In Shankarrao Vs. Chandrasenkunwar, , 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 @ Vaijayanatabai Baburao Pateil Vs. Shantaram Baburao Patil and Others, 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 otherside 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, the honourable Supreme Court held that discretion given by Section 5 should not be defined or crystallised 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 Vs. Kuntal Kumari and Others, the honourable 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 honourable 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, , the honourable 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."

In the result, revision is allowed. The order of the Tribunal dated April 13, 2006 is set aside. Delay in filing the appeal is condoned. Tribunal is directed to register the appeal and decide on merit.