State Of Assam And 3 Ors vs Ramawtar Agarwalla

Heard Mr. N Updhayay, learned counsel for the applicants and Mr. GN Sahewalla, learned Senior Counsel assisted by Ms. B Sarma, learned counsel for the respondent.

This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 966 days in filing the connected regular first appeal against the judgment and decree dated 28.07.2015 passed by the learned Civil Judge, Nagaon in Money Suit No. 1/2015. There is delay of 966 days in filing the connected appeal. The following dates are relevant in deciding this application and the explanation thereof:-

(i) On 28.07.2015 judgment was passed in Money Suit No. 1/2015 and it was decreed by the learned Civil Judge, Nagaon that the respondent/ plaintiff is entitled to Rs. 31,75,307/- along with interest at the rate of 6% per annum from the date of filing the suit till realisation. The judgment and decree was passed ex parte and the applicants were not aware about the same nor there was any communication from the Government pleader in the Nagaon Court.

(ii) In the month of May, 2017 the applicants could come to know about the disposal of the money suit. The Executive Engineer, Nagaon Division (Irrigation) collected required documents from the court at Nagaon and forwarded to the Standing Counsel, Irrigation, Gauhati High Court on 31.05.2017. The judgment and decree were not sent to the Standing Counsel and on advice application for certified copy was filed on 02.06.2017 and the same were received on 07.06.2017. The said certified copies were received in the last part of June, 2017 by the Standing Counsel.

(iii) The Standing Counsel upon examination of the records, the running bill accounts in respect of the work executed, the basis on which the plaintiff respondent claimed the amount in the suit were not in the records submitted to him. It was informed to the Chief Engineer, Irrigation Department, Assam on 17.07.2017 whereafter the same was requisitioned from the office of the Executive Engineer, Nagaon and submitted by the office of the Chief Engineer, Irrigation Department in the last part of August, 2017. Remaining documents received by the Chief Engineer were sent to the Standing Counsel in the month of September, 2017. The appeal was made ready in the month of October, 2017 but necessary approval was not accorded by the Government for filing the appeal as the regular Secretary of the department was arrested in connection with vigilance case on 26.03.2017. One IAS officer was given charge of the office and as he was holding the post as In-charge, Secretary and the same was an additional charge he could not give due concentration in the matters relating to Irrigation Department and no approval in filing the appeal was accorded.

(iv) In the month of February, 2018, the regular incumbent as the Secretary took charge but immediately he could not give the approval and in the last part of May, 2018, the consent to file the appeal was given. Thereafter, appeal was filed on 22.06.2018 resulting in delay of 966 days in filing the appeal.

Stating that the appeal could not be filed within time due to unavoidable reasons the learned counsel for the applicants sought for condonation of the delay otherwise, the applicants will suffer irreparable loss and injury. There was no negligence or laches on the part of the applicants for which the appeal could not be filed on time.

Vide order dated 30.10.2018 it was observed by this court that the explanation for delay as furnished in the application were extremely vague and inadequate for the court to take a proper view in the matter. Considering the fact that a substantial amount of public money is involved in this case, a further investigation was called for so as to ascertain the circumstances under which the applicants' counsel failed to take appropriate steps in the matter defending the interest of the State. Accordingly, the applicant no. 2, the Chief Engineer, Irrigation Department was directed to make an enquiry and file an additional affidavit to the following queries:-

(1) The reason for which no steps was taken by the Government Pleader to defend the interest of the State in the money suit leading to the ex-parte decree.

(2) The day to day explanation of the delay with effect from the date on which the judgment passed by the Court below had come to the knowledge of the applicants be placed on record.

The affidavit, as directed above, shall be brought on record on or before 26.11.2018.

There was considerable delay in filing the additional affidavit and vide order dated 15.03.2019 further extension of the period for filing the additional affidavit by 3 weeks was granted from 15.03.2019 subject to payment of cost of Rs. 10,000/- in the Registry of this Court along with the affidavit to be filed within the said extended period of 3 weeks. Finally, the additional affidavit was filed on 08.04.2019. An enquiry, as per the additional affidavit, was conducted and the grounds for the delay in the connected appeal were stated as follows:-

(a) The Money Suit No. 1/2015 in the court of learned Civil Judge, Nagaon proceeded ex parte on 27.08.2015. There was no representation by the Government Pleader, Nagaon Court although all necessary instructions were furnished to him. The concerned Executive Engineer, Nagaon Division and Superintendent Engineer, Nagaon Circle did not receive the judgment till June, 2017 and only after engaging a private lawyer the judgment and the relevant documents were collected. The Executive Engineer informed that the copy of the judgment of the case was submitted to the Standing Counsel, Irrigation Department but no action was taken by the earlier Standing Counsel, Irrigation Department. It was informed by the then Standing Counsel, Irrigation Department vide certificate dated 06.09.2017 that he had filed the regular first appeal in this court, but the same was filed only in July, 2018 and as such, on the basis of the enquiry it held that the Government Pleader led to the delay in processing for filing the first appeal and there was delay on the part of the earlier Standing counsel in filing the appeal. The said reasons are beyond the control of the applicant no. 2, the Chief Engineer.

Mr. Upadhayay submits that the suit proceeded ex parte and as such the applicants were unaware of the judgment and decree passed on 27.04.2016 in money suit no. 24/2014.

It was in the month of May, 2017, the applicants could come to know about the disposal of the money suit. On 31.05.2017 though the documents after collecting it from the court at Nagaon was forwarded to the then Standing Counsel but the judgment and decree was not sent to the Standing Counsel and subsequent thereto after applying for the certified copy of the judgment and decree on 02.06.2017 and having received the same on 30.06.2017, the same were dispatched and the Standing Counsel received on 15.07.2017. Subsequent thereto, time was consumed in order to collect various bills in respect of the work executed by the respondent which were handed over in the month of September, 2017. Though the appeal was made ready in the month of October, 2017 it was only in the last part of May, 2018 the approval for filing the appeal was accorded by the Government. On receipt of the approval appeal was filed on 22.06.2018 resulting in delay of 966 days. Referring to the subsequent additional affidavit following the direction of this court it is the submission of Mr. Upadhayay that on enquiry by the Executive Engineer to the then Standing Counsel it was informed that the appeal was already filed but in fact it was filed in the month of July, 2018. This information led to a misunderstanding inasmuch as the applicants, more specifically, the Executive Engineer was upon the bonafide impression that the appeal was already filed as informed by the then Standing Counsel. As per the enquiry the Government Pleader at Nagaon and the earlier Standing Counsel were held responsible for the delay and the said reasons are beyond the control of the applicants.

Mr. Upadhayay relying on the case of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & another reported in (2010) 5 SCC 459 submits that the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 is elastic enough to enable the courts to apply the law in meaningful manner which subserves the ends of justice. Further, in dealing with the applications for condonation of delay filed on behalf of the State though the same yardstick to be applied for deciding the applications for condonation of delay filed by private individuals and the State, Mr. Upadhayay submits that the Hon'ble Apex Court observed that certain amount of latitude is not impermissible in the latter case on the ground that 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. Further, relying on the case of N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 SCC 123, Mr. Upadhayay submits that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause and as such there should not be any presumption that delay in approaching the court is always deliberate. The words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Mr. Upadhayay finally submits that as there was laches on the part of the counsel, a liberal approach is required in order to condone the delay and by treating the causes as "sufficient cause" within the ambit and scope of the Section 5 of the Limitation Act, 1963.

Countering the submission of Mr. Upadhayay, Mr. Sahewalla submits that the negligence on the part of the responsible officials of the State are clear and apparent. From the petition and the additional affidavit it can be held that summons were duly served, Government Pleader was engaged but there was no follow up action on the part of the Government officials and by mere blaming the counsel the responsible officials of the State cannot wash off their hands. The causes in the petition and the result of the enquiry goes to show that there are contradictory statements inasmuch as on one hand, in the petition it is submitted that there was unbelievable delay in according the approval to file the appeal by the State to the Standing Counsel. On the other hand, the said fact was not even considered at the time of enquiry inasmuch as the post of Secretary is held by the officials of the department itself.

Mr. Sahewalla relies on the case of Basawaraj & another v. Special Land Acquisition Officer reported in (2013) 14 SCC 81 and submits that it is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when statute so prescribes. The court has no power to extend the period of limitation on equitable grounds and as such, the statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The delay condonation application is to be decided only within the parameters laid down by the Apex Court in regard to the condonation of delay and if no sufficient causes are found there is no justification in allowing such petition condoning the delay putting any condition whatsoever amounts to passing an order in violation of the statutory provision and it tantamounts to showing utter disregard to the legislature. He also relies on the case of Union of India & others v. Nripen Sarma reported in (2013) 4 SCC 57.

I have considered the submissions of the learned counsel for the parties. From the petition and the additional affidavit it can be seen that the Government Pleader at Nagaon was aware about the institution of the suit and the summons were received by the responsible officials of the department. The judgment was passed on 28.07.2015. The appeal ought to have been filed on 28.10.2015. But it came to the knowledge only in the month of May, 2017. As per the petition the Executive Engineer, Nagaon Division collected the required documents from the court at Nagaon and forwarded the same to the Standing Counsel, Irrigation, Guwahati vide letter dated 31.05.2017. It is stated in the petition that the documents sent by the Executive Engineer were without the judgment and decree and as such on the instruction of the Standing Counsel it was applied and officially on receipt of the same on 07.06.2017 it was handed over in the last part of June, 2017 to the Standing Counsel. On the other hand, in the additional affidavit after causing the enquiry as per the record it revealed that the Government Pleader at Nagaon Court did not appear in the case nor informed the authorities about the ex parte judgment dated 28.07.2015. It is explained that the Government Pleader was very old person and used to forget dates of the cases due to which he failed to appear on the date fixed by the court for appearance. It is in the month of May, 2017, the applicants could come to know about the said ex parte judgment. The Executive Engineer informed that the copy of the judgment of the case was submitted to the Standing Counsel but no action was taken by the earlier Standing Counsel. Rather, it is stated supported by an affidavit that the earlier Standing Counsel verbally intimated the applicants that the appeal had already been filed but later on only they came to know that the appeal was filed in the month of July, 2018.

The explanation in the petition in respect of the various requests in respect for collecting various documents/ bills did not find any place in the said additional affidavit. This itself shows that the grounds taken in the delay condonation petition for condoning the delay of 966 days has no basis not to speak of any supporting evidence in the form of letter requesting the various documents by the Standing Counsel.

In order to condone delay while fling an appeal or any other petition it is the cause which is required to be placed on record for not filing appeal within the prescribed time period under the Limitation Act, 1963. In the present case in hand the date of judgment is 28.07.2015 and the appeal ought to have been filed within a period of 90 (ninety) days as per the prescription under Article 116(a) of the Schedule to the Limitation Act, 1963. Thus the last day of filing was 28.10.2015. The cause for not filing the appeal within 28.10.2015 was because of the fact that the suit proceeded ex parte. But it is on record that on receipt of summons all the papers were handed over to the Government Pleader of the Nagaon Court. But due to old age of the pleader he forgot to take steps in the suit resulting the suit to proceed ex parte and it was in the month of May, 2017 the applicants could come to know about the ex parte judgment. But the applicants are silent in disclosing that particular source from which they could come to know about the judgment and decree. In my opinion disclosure of the source is of utmost importance in assessing the degree of sufficiency of causes for condonation of such a prolonged delay. From May, 2017 it took almost more than 400 (four hundred) days to file the appeal. The applicants even on specific query from this court did not explain the causes for delay from the date of judgment till expiry of the prescribed period of limitation on 28.10.2015. An inference can be drawn that none of the officials took interest in the progress of the suit which shows the negligence on the part of the responsible officers of the department. The act of negligence is far more strengthened because of non disclosure of the source from which the applicants could come to know about the ex parte judgment and decree in the month of May, 2017.

The delay sought to be condoned is of 966 days. It is the settled law that in the event of condoning delay of longer duration the doctrine of prejudice that may be caused to the other side must have to be considered. There is a prescribed period of limitation for filing the appeal which is statutory in nature. The court while extending the said prescribed statutory period of limitation is required to apply extraordinary discretion but the same must be on grounds which are beyond the control of the party seeking the said extension of time. From the point of view of the respondent once the period of limitation was over, the right to the decreetal amount attains finality. This right has to be taken into consideration and if the length of delay is too long a period, in my opinion, the court must be strict in examining the grounds for the delay.

The words "sufficient cause" has its elasticity to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. But the said elasticity has to be extended only on grounds which are beyond the reasonable control of the party but when the party seeking condonation is the State some amount of latitude is not impermissible as held by the Hon'ble Apex Court. From the petition and the additional affidavit it can very well be inferred that on receipt of the summons the Government Pleader at Nagaon was engaged and even thereafter there were no follow up action on the part of the officials. Though it came to the knowledge of the officials belatedly in the month of May, 2017, as per the enquiry report the documents were sent to the Standing Counsel of the department in the Gauhati High Court. Even then there was negligence on the part of the State in according the approval to file the appeal. The explanation in the petition that an IAS Officer was deputed to take additional charge but he was not interested in the affairs of the Irrigation Department, cannot at all be an acceptable explanation inasmuch as even if the party seeking condonation of the delay is the State and though the negligence and laches can be tolerated to a substantial extent but not for the grounds which are vague as pleaded in the petition. Moreover, there is no reference nor explanation in the additional affidavit as to why there was delay in according approval to file the appeal. For the said reasons the explanation in additional affidavit filed by the applicants makes it highly improbable for acceptance.

Relying Basawaraj & another v. Special Land Acquisition Officer (supra) when the party is found to be negligent or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay nor it would be justified in condoning such inordinate delay by imposing any condition inasmuch as the rejection of the delay condonation petition is the action flowing from a statutory provision and the court has no power to ignore that particular provision under Section 5 of the Limitation Act. Further, if on the basis of the causes shown in the petition wherefrom it is evident that the applicants were negligent in a manner which cannot be expected from the responsible officers of the State, I am of the view that if the delay of 966 days is condoned, the same would be in clear violation of the statutory provision and it tantamounts to showing utter disregard to the legislature. Accordingly, I do not find any merit in this petition which stands dismissed.

No costs.