State of Sikkim and Others vs Dilli Prasad Sharma

Sonam Phintso Wangdi, J.

This is to consider an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing appeal by the State-Appellants. It is stated that the delay of 288 days occurred due to the procedures required to be followed by the Respondent in taking the decision to file the appeal.

Mr. J.B. Pradhan, Additional Advocate General, has taken us through the various pleadings contained in the application under Section 5 of the Limitation Act along with the additional documents and also has offered to produce the relevant files wherein the decision was taken. It is submitted that the Appellants have acted with due diligence as the records would show and, that they have an arguable case in the appeal and urge that the possibility of the Appellants being successful is quite certain. For these reasons, it is submitted that the delay be condoned and appeal be heard on merits.

Mr. B. Sharma, Senior Advocate, appearing on behalf of the Respondent, on the other hand, opposes the prayer for condonation of delay and submits that the delay has been deliberate. It is his submission that the present appeal has been filed against the Government''s earlier decision not to appeal against the impugned judgment. In support of this submission, he refers to documents Annexures R1 and R2. These documents, as per Mr. B. Sharma, establish that the Government had indeed decided to abide by the decision of the Trial Court contained in the impugned judgment and not to appeal against it. Secondly, he urges that the inordinate delay in filing the appeal has not been explained and the explanation that has been given in the application cannot at all be considered as a reasonable cause.

He further submits that in P.K. Ramachandran Vs. State of Kerala and Another, which, as per him, is similar to the present one, it has been held that the period of limitation prescribed in the statute has to be applied with all its rigour and the Courts have no power to extend the period of limitation on equitable grounds. He also refers to Office of the Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another, , to contend that condonation of delay is an exception and should not be used as an anticipated benefit for Government Departments for condonation of delay on account of an impersonal machinery and, that law of limitation binds everybody including the Government.

It is thus submitted that the inordinate delay having not been explained as required under the law, it ought not be condoned and prays that the application be dismissed.

I have given careful consideration to the rival submissions of the Learned Counsel for the parties, pleadings contained in the application for condonation of delay and the reply thereto filed by the Respondent.

We may reproduce below the relevant pleadings which would be relevant for the purpose of considering this application:--

"2. That the impugned judgment in favour of the Respondent/Plaintiff was passed on 27.08.2013. An application for the certified copy of the said judgment was made on 27.08.2013. The certified copy was made ready on 11.09.2013 and was delivered by the Head Copyist of the Court of Ld. District Judge, East Sikkim at Gangtok on 11.09.2013. As such, the Memorandum of appeal was required to be filed within 90 days i.e. 10th December, 2013.

It is submitted that a certified copy of Judgment dated 27.08.2013 was received from Shri. N.T. Bhutia Sr. Govt. Advocate on 12.09.2013. The Director DHH then forwarded the certified copy of Judgment in the file to the Secretary, Commerce and Industries on 17.09.2013 for onwards submission to the Law Department. The Secretary Commerce and Industries forwarded the file on 19.9.2013 to the Principal Secretary, Law Department. The Principal Secretary, Law Department forwarded the file back to Director DHH on 23.09.2013 to obtain an opinion of the concerned Ld. Sr. Government Advocate.

The Director, DHH then forwarded the file to Sr. Government Advocate on 23.09.2013. Mr. N.T. Bhutia Sr. Government advocate then forwarded the file to Director DHH on 24.09.2013, which was later forwarded to the Secretary Commerce and Industries on 26.09.2013 and then same was forwarded to the Principal Secretary, Law on 28/09/2013. The Principal Secretary, Law then forwarded the file to the Director DHH on 30.09.2013 to obtain legal opinion of learned Advocate General/Additional Advocate General. The Director DHH forwarded the file to Secretary Commerce and Industries on 30.09.2013 and the same was forwarded to Ld. Additional Advocate General High Court of Sikkim on 03.10.2013. The Additional Advocate General forwarded the file to the Secretary Commerce and Industries on 08.10.2013, which was forwarded to the Director DHH on the same day. Subsequently the file was again forwarded to the Secretary Commerce and Industries on 08.10.2013. The Secretary Commerce and Industries then forwarded to the Dispatcher of Industries Head Office on 09.10.2013 with an instruction for issuance of letter to the Secretary, Land Revenue.

It is submitted that the Legal Retainer of DHH forwarded the file to the Director DHH on 21.10.2013. The file forwarded back to the Legal Retainer and Assistant Director on 21.10.2013 to ascertain the facts from the Land Revenue which was later forwarded to the Director DHH on 23.10.2013. The same was again forwarded to the Legal Retainer and the Assistant Director on 24.10.2013. The file was forwarded to the Director on 08.11.2013 and the same was forwarded to the Legal Officer on 11.11.2013. The Director DHH forwarded the file to the Secretary Commerce and Industries on 12.11.2013 and the same was forwarded to the learned Additional Advocate General High Court of Sikkim on 13.11.2013. The Learned Additional Advocate General then forwarded to the Law Officer of DHH with an instruction to give detail comments/report on 14.11.2013.

The Legal Retainer DHH then forwarded the file to the Director DHH on 19.11.2013 and the same was subsequently forwarded to the Secretary Commerce and Industries on 19.11.2013. The Secretary Commerce and Industries then forwarded the file to the Learned Additional Advocate General High Court of Sikkim on the same day. The Learned Additional Advocate General forwarded the file to the Secretary Commerce and Industries on 26.11.2013. The Secretary Commerce and Industries then forwarded the file o the Chief Secretary on 27.11.2013. The Chief Secretary then file forwarded to the Home Secretary on 29.11.2013 and the same was forwarded to the Special Secretary (Confidential) Home Department on 29.11.2013. The Special Secretary (Confidential) Home Department forwarded the file to Additional Secretary (Condl.), Home Department on 29.11.2013. And the file was forwarded to Deputy Secretary III (confidential) Home Department on 30.11.2013. The Deputy Secretary (Confdl) further forwarded the file to Legal Retainer, Home Deptt, on 03.12.2013. The Legal Retainer Home Deptt., forwarded the file to the Deputy Secretary III (Confdl) Home Department on 10.12.2013 and the same was again forwarded back to Legal Retainer, Home Deptt., on 12.12.2013. The Legal Retainer Home Deptt., forwarded the file to Deputy Secretary Home Department on 13/12/2013 and thereafter, the Deputy Secretary -III (Confidential) Home Department forwarded the file to Additional Secretary (Confidential), Home Deptt., on 16.12.2013 The Additional Secretary (Confld) forwarded the file to Special Secretary (Confdl) on 16/12/2013 and it was forwarded to Principal Secretary, Home Deptt. on 16.12.2013. The file was forwarded to the Chief Secretary on 18.12.2013 and the same was sent to the Hon''ble Chief Minister on 19.12.2013. The file was forwarded to the Chief Secretary on 21.12.2013, and the same was forwarded to the Secretary Home Department on 23.12.2013, the file was forwarded to special Secretary (Confidential) on 24.12.2013, the Special Secretary (Confidential) forwarded the file to Additional Secretary (Confidential) on 26.12.2013. The Additional Secretary (Confidential) forwarded the file to the Secretary Industries on 26.12.2013 which was subsequently forwarded to the Director DHH on 26.12.2013.

It is submitted that the Director DHH forwarded the file to the Secretary Commerce and Industries on 08.01.2014. The Secretary Commerce and Industries forwarded the file on 21.01.2014 to the Chief Secretary which was again back to the Secretary Commerce and Industries on 22.01.2014. The Chief Secretary forwarded the file to the Secretary Commerce and Industries on 24.01.2014. The Secretary Commerce and Industries forwarded the file to the Learned Advocate General High Court of Sikkim on 25.01.2014.

That the Learned Advocate General, High Court of Sikkim forwarded the file to the Secretary Commerce and Industries on 12.05.2014. Thereafter, the Secretary Commerce and Industries forwarded the file to Director DHH on 13.05.2014. The file was forwarded to Legal Retainer of DHH on 21.05.2014. The Legal Retainer DHH forwarded the file to Director DHH on 22.05.2014. The same was forwarded to Secretary Commerce and Industries on 24.05.2014. The Secretary Commerce and Industries forwarded the file to the Chief Secretary on 31.05.2014. The Chief Secretary then forwarded the file to Home Secretary on 03.06.2014. The Home Secretary forwarded the file to the Principal Secretary Law Department on 3.06.2014. The Principal Secretary Law Department forwarded the file to the Secretary Law on 04.06.2014. The Secretary Law forwarded the file to the Principal Secretary Law on 20.06.2014 which was subsequently forwarded to the Hon''ble Minister Law Department on 20.06.2014.

It is submitted that the Hon''ble Minister Law the then forwarded the file to Principal Secretary Law Department/Secretary Law. The Principal Secretary Law Department forwarded the file on 12.07.2014 with an instruction to attend meeting with file. The file forwarded/Submitted to Principal Secretary Law on 01.08.2014. The Hon''ble Minister Law forwarded the file on 02.08.2014 to Principal Secretary Law and the same was subsequently forwarded to the Secretary Law on the same date.

Thereafter, the file was forwarded to Principal Secretary Law Department on 05.08.2014. The Principal Secretary forwarded the file to Secretary Commerce and Industries on 05.08.2014. The Secretary Commerce and Industries forwarded the file to Director DHH on 13.08.2014 and the same was forwarded to Learned Additional Advocate General High Court of Sikkim.

Thereafter, the file was forwarded to the Learned Additional Advocate General High Court of Sikkim and Addl. A.G. forwarded the file to Sr. Government Advocate, High Court of Sikkim to oversee that the appeal is drafted by the Legal Retainer DHH. On 13/08/2014 the legal retainer drafted the appeal. However, from 14/08/2014 till 20/09/2014 the Ld. Senior Government Advocate was either preoccupied preparing for the other matters fixed for hearing or settling other drafts concerning the State. Moreover, from 12/09/2014 till 19/09/2014 the Ld. Sr. Advocate was taking complete rest as he was suffering from dehydration due to excess diarrhea (sic). The draft could be finally settled only on 20/09/2014."

As the above pleadings are based on the proceeding recorded in the Government file which is placed before us, it is felt unnecessary to peruse those. On a consideration of the pleadings, it appears that the question as to whether an appeal should be filed or not was actively deliberated upon at various levels of the Government until the decision was taken in August, 2014, clearly indicating thereby that there was no laxity on the part of the Appellants in following up with the matter. I am satisfied that the State-Appellants were prevented by sufficient cause in filing the appeal. The decisions cited at the bar by Mr. J.B. Pradhan appear to be appropriately placed in the facts and circumstances of this case. We may first refer to the case of S. Ganesharaju (D) Thr. L.Rs. and Another Vs. Narasamma (D) Thr. L.Rs. and Others, , the relevant portion of which reads as under:--

"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a goby.

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We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matter should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that the appellants have shown sufficient cause seeking condonation of delay and the same has been explained satisfactorily."

In the present case as can be made out from the pleadings extracted earlier, no mala fide can be attributed to the State-Appellants in not approaching the Court within the period of Limitation. There also are arguable points set out by the appellant in the appeal that require serious consideration. The subject matter of the suit from which the present appeal has arisen is of grave public interest calling for it to be heard on merits and would be unjust to shut out the Appellants at the threshold solely on the technical ground of limitation.

Resting on Office of the Chief Post Master General (supra), Mr. B. Sharma no doubt has points out that procedure followed in the official transaction cannot be accepted as a reasonable cause for delay but, in Indian Oil Corporation Ltd. and Others Vs. Subrata Borah Chowlek, etc., , it has been held as under:--

"10. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependent on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases." 11. Obviously, the exercise of the discretionary power under Section 5 of the Limitation Act by the Court will depend on the fact and circumstances of each case. They cannot be a rule of general application. The decisions cited by Mr. B. Sharma is clearly distinguishable from the facts and circumstances of the present case and are of no assistance to the Respondent.

For these reasons, I find no hesitation in allowing the application for condonation of delay and, is accordingly allowed.

Resultantly, the delay in filing appeal is condoned.