Pradeep Shejawadkar vs Dy. Development Officer Karnataka Industrial Development Board

Aravind Kumar, J.—Respondent in R.A. No. 9/14 (unnumbered R.A.__/09) is seeking for quashing of the order passed on 12.02.2014 by Principal Senior Civil Judge, Karwar condoning the delay of 1 year 103 days in preferring the appeal.

Parties are referred to as per their rank in the trial Court namely, in O.S. No. 86/2000.

Petitioner filed a suit in O.S. No. 86/2000 for the relief of perpetual injunction against defendants namely, respondents herein. Said suit came to be decreed on 25.01.2008. Being aggrieved by the same, an appeal came to be filed by defendants. Since appeal was presented belatedly, an application under Section 5 of the Limitation Act, 1963 was filed. Said application was resisted by the plaintiff by filing detailed statement of objections. Parties tendered their oral evidence and defendant No. 1-Dy. Development Officer was examined as P.W.1 on behalf of defendants. It was the specific defence of the defendants that property has been acquired under the provisions of the Karnataka Industrial Area Development Act, 1966 and Land Acquisition Act, 1894 and possession of the property in question had also been taken over on 17.07.1975 as contemplated under Section 28(7) of the Act and as such, the land had stood transferred to the Board on 04.04.1997. It was further contended that plaintiff has only a right to receive the compensation and as such, he has no right to seek injunction against the defendants.

P.W. 1 in his examination-in-chief has stated that on receipt of certified copy of the judgment and decree forwarded by learned Advocate, same was processed and forwarded to Dharwad office and thereafter in the hierarchy of defendants-Board, various approvals had to be obtained from higher authorities to file the appeal and as such, there has been administrative delay. Reiterating the averments made in the affidavit supporting the application for condonation of delay, P.W.1 tendered his evidence.

Likewise, plaintiff has also entered witness box and he has been examined as R.W.1 and denied contents of the affidavit filed in support of application seeking condonation of delay. On evaluation of evidence, trial Court accepted cause shown by defendants as sufficient cause for condoning the delay and on account of lethargy exhibited by the defendants, it has imposed cost of Rs. 3,000/- on them for allowing the application for condonation of delay.

It is the contention of Sri S.V. Yaji, learned Advocate appearing for petitioner that trial Court was not justified in condoning the delay and it was incumbent upon the defendants to explain the delay with sufficient cause and hence, he submits that order condoning the delay vide Annexure-D is liable to be quashed.

Having heard learned Advocate appearing for the petitioner and on perusal of the impugned order, it is required to be noticed that it is not the length of time which requires to be considered by this Court but the cause shown i.e., existence of sufficient cause namely, as to whether cause shown for delay would inspire confidence for being accepted which prevented the unsuccessful party to approach the Court belatedly. Where delay is inordinate and unexplained and reasons given in the application or the affidavit supporting the application as the case may be is vague or there is no proper explanation, then in such an event, it requires to be rejected as otherwise not.

Hon''ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, has held that when technicalities are pitted against substantial justice, latter has to yield. It has been held by Hon''ble Apex Court as under:

"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 malafides. 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".

Yet again, Hon''ble Apex Court in the case of State of Nagaland Vs. Lipok AO and Others, has held that though no indulgence can be shown to the Government which seeks for condonation of delay which under similar circumstances is not shown to an individual litigant, at the same time, it has been held that Courts cannot lose sight of the fact that working of the Government is often at a snail''s pace and this bureaucratic lethargy is often present. No doubt there is no personal interest by the authorities who take decision and it is axiomatic that decisions are taken by the Officers or by the agencies at slow pace and same involves 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. It has been held by the Hon''ble Apex Court as under:

"The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. It is axiomatic that decisions are taken by the 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 of 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 governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. 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."

Keeping these principles in mind, when facts on hand are examined, it would indicate that concerned officer on receipt of certified copy of the judgment and decree passed by the trial Court, same has been forwarded to the Circle Office, who have sat over the file and subsequently, forwarded the same to higher authorities for grant of approval for sanctioning of filing of the appeal. It is because of this precise reason, delay has occasioned and same having been explained by defendants came to be rightly accepted by the trial Court and in order to safeguard the interest of plaintiff who has been made to defend the judgment and decree passed by the trial Court, has been suitably compensated by awarding costs of Rs. 3,000/-. There is no infirmity whatsoever in the order passed by the trial Court calling for interference at the hands of this Court. Hence, writ petition is hereby dismissed.