State of M.P. vs Lakhan Singh

Rohit Arya, J.—This appeal by appellant/State is preferred against the judgment and decree dated 21st May, 2010 passed by First Additional Judge to the Court of First Additional District Judge, Gwalior in Civil Appeal No. 19/2009. The first appellate Court has decreed the suit confirming the findings of the trial Court in judgment and decree dated 27/8/2009 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No. 2-A/2009. The first appellate Court has decreed the suit for declaration and permanent injunction holding that the Patta of agricultural land awarded to the plaintiffs vide order dated 14/6/1962 was by a competent revenue authority and since then, respondents/plaintiffs have been found to be in possession of the suit land doing cultivation and harvesting crops thereon. In fact the first appellate Court had set aside the judgment and decree of the trial Court in which though the findings were recorded in favour of plaintiffs but suit was dismissed for want of payment of deficit court fees.

This appeal by the appellant/State is barred by 2 years 210 days (940 days) and to seek condonation of delay I.A. No. 1569/2013 has been filed.

I.A. No. 1569/2013 is taken up for consideration.

Having perused the application, this Court is of the opinion that there is no explanation at all much less plausible explanation explaining the delay caused in filing the appeal inasmuch as in para 2 and para 3, appellant/State has tried to explain delay, which is quoted hereinbelow for ready reference:-

That, after came to know about the impugned judgment and decree passed by Learned First Appellate court, a Competent Officer had approached with the Government Advocate who has given his opinion on 7/8/2012 to prefer second appeal.

That, the aforesaid legal opinion matter has been forwarded by the Tahsildar, Gwalior along with photocopy of the judgment and decree and legal opinion to the collector (J.C. Branch) Gwalior vide his report dated 28.8.2012. Thereafter Joint Collector, Gwalior has directed that Sub Divisional officer, Jhansi Road, Gwalior to file second appeal in the matter vide letter dated 2.3.2013. Thereafter Collector, Gwalior has appointed OIC into the matter vide order dated 2.3.2013, who had approached in the office of Additional Advocate General, High Court, Gwalior. Thereafter, this appeal is being drafted and filed before this Hon''ble court.

Upon perusal thereof, it appears that mere casual statements have been made without details as regards explanation of passage of time ever since the impugned judgment and decree was passed by the first appellate Court on 21st May, 2010. No date of knowledge is shown and no explanation is forthcoming as regards period spent for seeking the opinion of the Government Advocate which is said to be on 7/8/2012. As such, after passing of the impugned judgment and decree dated 21st May, 2010 till 7/8/2012 i.e. for about two and half years, there is no explanation. Hence, the delay of 940 days caused in filing the appeal is without any explanation.

Learned counsel for the respondents submits that in the latest judgment Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , Hon. Supreme Court while considering the application for condonation of delay at the instant of Management has considered the ambit, scope, limitation and dimensions of Section 5 of the Limitation Act, particularly with reference to concept of sufficient cause and accordingly has found that such applications which lack material particulars as well as bona fide in explaining sufficient cause, no indulgence of the Court is warranted be that, an application at the instance of Management. Para 15 and 16 of the aforesaid judgment are quoted hereinbelow:-

From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:-

(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters.

(emphasis supplied)

Keeping in mind the principles of law as laid down by Hon. Supreme Court and juxtaposing the same with the factual matrix in hand, this Court is of the opinion that the I.A. is lacking in material particulars and bona fides and reflects gross negligence on the part of the State in the matter of filing the appeal barred by 940 days. Hence, I.A. (1569/13) is rejected. Consequently, appeal is also dismissed being barred by limitation.