Union of India vs Godrej Agrovet Ltd.

N. Paul Vasantha Kumar, C.J.

This application is filed by Union of India as well as the Commissioner, Customs & Central Excise, seeking to condone the delay of 928 days in

filing the Letters Patent Appeal against the order dated 4-5-2012 made in OWP No. 1209/2009. The said writ petition was disposed of by the

learned Single Judge by following an earlier order made in OWP No. 470/2008 which was decided on 23-12-2010 and the writ petition was

disposed of in terms of the said earlier judgment dated 23-12-2010. The contention of the applicants is that the issue involved in the appeal is

common in nature and 107 Letters Patent Appeals, which were filed by the applicants-appellants on the same issue in respect of other parties, are

pending before this Court as on today and the interim orders were also passed on 13-12-2012 in tune with the interim order passed by Hon'ble

the Supreme Court in SLP (Civil) No. 28194-28201/2010, dated 13-1-2012. It is also stated in the affidavit and petition filed by the

Commissioner, Customs & Central Excise dated 7-2-2014 that the applicants have engaged the services of a reputed counsel for defending,

pursuing and appearing in the matter and they were under a bona fide impression that the learned counsel was pursuing the matter. Learned

counsel orally informed the applicants that the writ petition was not decided and only after receiving caveat from the respondent on 26-8-2011, the

disposal of the writ petition came to the knowledge of the applicants. The applicants requested the counsel on 29-8-2011 for taking necessary

action, but even thereafter the learned counsel failed to inform the action taken, hence the applicants sought the services of other counsel and

applied for certified copy on 19-12-2013, which was issued on 16-1-2014. Thereafter the applicants took steps for preparing the appeal and sent

it for vetting and filing before this Court. It is specifically reiterated that because of the mistake or negligence of the counsel or his chamber-clerk,

there occurred delay of 928 days and unless the delay is condoned, the applicants will suffer an irreparable loss of revenue, which can never be

compensated in future.

The application was opposed by the respondent by contending that this Court admitted the connected appeals on 7-4-2011 based on the

interim order passed by Hon'ble the Supreme Court, wherein the respondents were directed to give an undertaking to the effect that if the Revenue

succeeds in their appeal, the respondents shall refund the amount with interest. While hearing the main writ petition, namely, OWP No. 1209/2009

on 4-5-2011, this fact was not informed before the learned Single Judge and the applicants were not diligently prosecuting the matter and merely

blaming the learned counsel cannot be a reason to condone the inordinate delay of 928 days.

Learned counsel appearing for the applicants argued that the delay has occurred on account of facts stated in the application and the same is

neither willful nor deliberate and the mistake of the counsel cannot be put against the applicants as particularly in revenue matters, the government

will lose revenue and, therefore, a pragmatic view may be taken by this Court. It is also argued by the learned counsel that by condoning the delay

the respondent will not be put to any prejudice as the learned Single Judge has allowed the writ petition by following an earlier order and the same

has not attained finality.

Learned counsel appearing for the respondent on the other hand opposed the application and contended that after the date of period of

limitation a right has accrued to the respondent and if the delay is condoned, prejudice will be caused to the respondent. He has relied on Ramlal,

Motilal and Chhotelal Vs. Rewa Coalfields Ltd., and Balwant Singh (Dead) Vs. Jagdish Singh and Others, . In support of his contention and

prayed for dismissing the application.

We have paid our anxious attention to the pleadings as well as the points raised, argued and the decisions cited.

It is not in dispute that the writ petition filed by the respondent was allowed by the learned Single Judge by following an earlier order made in

OWP No. 470/2008, dated 23-12-2010. No independent order giving factual finding was passed by the learned Single Judge. Once the order,

which was followed, has not attained finality and a batch of 107 appeals are already entertained by this Court and are pending as on date, the

applicants are justified in filing the appeal against the order of the learned Single Judge and the delay, though is abnormal, is properly explained by

stating that the learned counsel engaged, or his office, never informed the fact about the final order passed in the writ petition and after receiving

notice on caveat, the applicants immediately approached the counsel for applying for the certified copy which was also not applied and thereafter

through another counsel certified copy was applied and after receiving the same, appeal papers were made ready and the same was filed. The said

explanation shows ""sufficient cause"" to condone the delay. As rightly contended by learned counsel for the applicants, by condoning the delay, the

right of the respondent will not be affected as the order in its favour was passed by following an earlier order, which is in appeal as on date.

The decisions cited by the learned counsel for the respondent reiterate the position of law that bona fide and due diligence have to be shown by

a person seeking condonation of delay to seek the remedy before the Court under Section 5 of the Limitation Act, 1963 read with Section 5 of the

Limitation Act No. IX of 1995 of Jammu and Kashmir and the bona fide and due diligence has to be ascertained and determined on the facts and

circumstances of the each case. Therefore, the judgments cited, will not in any way help the respondent to support its contention.

In the decision reported as Balwant Singh (Dead) Vs. Jagdish Singh and Others, , it has been held that liberal construction of the expression

sufficient cause"" is intended to advance substantial justice, which itself pre-supposes no negligence or inaction on the part of the applicant to whom

want of bona fide is imputable. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the

delay as an excusable one. The department having engaged the counsel of repute is justified in their contention that the mistake committed by the

counsel cannot prejudice the party.

In State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Others, , the Supreme Court has condoned the delay of 6500 days in filing the

Appeal against the original order, wherein it has been held as follows:

The case at hand is a classic example where the circumstances are the same. More than 4000 acres of land are involved out of which,

according to the State, nearly 3500 acres constitute forest land. Ultimately, the Court has to protect the public justice. The same cannot be

rendered ineffective by skilful management of delay in the process of making challenge to the order which prima facie does not appear to be legally

sustainable.

The expression ""sufficient cause"" as appearing in Section 5 of the Limitation Act, 1963 (in short ""the Limitation Act"") must receive a liberal

construction so as to advance substantial justice as was noted by this Court in G. Ramegowda, Major and Ors Vs. Special Land Acquisition

Officer, Bangalore, Paras 16-17 of the judgment reads as follows: (SCC pp. 148-49)

The law of limitation is, no doubt, the same for a private citizen as for Governmental Authorities. Government, like any other litigant, must take

responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out

a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers of agents and where the

officers were clearly at cross-purposes with it.

Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 , it might, perhaps, be somewhat

unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the

functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red

tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility

of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental function - of course, within reasonable

limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and

private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay

incidental to the decision-making process. In the opinion of the High Court, the conduct of the Law Officers of the Government placed the

Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government. It

relied upon and trusted its Law Officers. Lindley, M.R., in National Bank of Wales Ltd., In re., observed, though in a different context: (Ch p.

673)

.....Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by

those below them, until there is reason to distrust them.

Keeping in view the importance of questions of law, which are involved, we are inclined to condone the delay subject to payment of exemplary

costs which we fix at rupees ten lakhs to be paid within a period of eight weeks to the Respondents. The delay is condoned subject to the payment

of the aforesaid amount as costs. After making the payment the receipt thereof shall be filed before this Court along with an Affidavit. Only after

the payment is made, the Special Leave Petitions shall be listed for admission. We make it clear that we have not expressed any opinion on the

merits of the case.

In State (NCT of Delhi) Vs. Ahmed Jaan, , the Hon'ble Supreme Court held as follows:

In State of Kerala v. E.K. Kuriyipe, it was held that whether or not there is sufficient cause for condonation of delay is a question of fact

dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath, it was held that the Appellant had sufficient cause

for not filing the Appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the

order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the

case was remitted for decision on merits.

In O.P. Kathpalia v. Lakhmir Singh, a Bench of Three Judges had held that if the refusal to condone the delay results in grave miscarriage of

justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji, a Bench of Two

Judges considered the question of limitation in an Appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do

substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the Court 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. This Court reiterated that the expression 'every day's delay must be

explained' does not mean that a pedantic approach should be made. 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 mala fides. A litigant does not stand to benefit by resorting to

delay. In fact he runs a serious risk. Judiciary is not respected 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. Making a justice-oriented approach from this perspective, there was sufficient cause for

condoning the delay in the institution of the Appeal............

In Indian Oil Corporation Ltd. and Others Vs. Subrata Borah Chowlek, etc., , the Hon'ble Supreme Court held that although exercise of

power under Section 5 of the Limitation Act, 1963 depends upon judicial satisfaction and no distinction is to be made between State and citizens,

courts should be liberal while condoning delay in case of State which depends upon its officials for its actions.

In the decision reported in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, the Hon'ble Supreme

Court laid down the following principles, among other principles, to be followed by the Courts while considering the condone delay petitions:

(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 eventurate there is no real failure of justice.

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

The Division Bench of Madras High Court in a decision reported in The Revenue Divisional Officer Vs. M.S.A. Ibrahim (died) and Others,

condoned the delay of 3081 days in filing the appeal against the decree passed by the subordinate Court, following the decision cited in paragraph

10 above. The said decision was challenged before Hon'ble the Supreme Court in SLP (Civil) No. 12175/2011 and by order dated 9-5-2011 the

Special Leave Petition was dismissed.

In Rafiq and Another Vs. Munshilal and Another, , Hon'ble the Supreme Court held that once a person engages his counsel, his botheration

goes and it is the duty of the counsel to take care of the case. It has been held as follows:--

The disturbing feature of the case is that under our present adversary legal system where the parties generally through their advocates, the

obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the

things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer,

the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal

appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate

in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to

his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his

job..........................

In yet another decision reported in The Secretary, Department of Horticulture, Chandigarh and Another Vs. Raghu Raj, , the Hon'ble Supreme

Court in paragraph 24 held thus,

24.......When a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not

suffer on account of default or non-appearance of the advocate.

Applying the above cited decisions to the facts of this case, we hold, applicants are justified in seeking condonation of delay. Accordingly the

application is allowed. The delay in filing the appeal is condoned, however, subject to payment of costs of Rs. 5,000/- by the applicants to the

respondent on or before 27-2-2015. The acknowledgement of receipt of cost shall be filed before the registry within a period of one week

thereafter. It is made clear that if the cost is not paid, as directed above, the application seeking condonation of delay shall stand automatically

dismissed without further reference to the Bench.