The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 899 OF 2023 State of Odisha and another …. Petitioners Mr. Ajodhya Ranjan Dash, Additional Government Advocate -versus- Benudhar Mishra and others …. Opp. Parties Mr. Soumya Mishra, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 24.04.2024 5. 1. 2. This matter is taken up through hybrid mode. Order dated 22nd November, 2022 (Annexure-6) passed by learned Additional District Judge, Champua in CMA No. 5 of
Facts
2020 (arising out of RFA No.16 of 2017) is under challenge in this CMP, whereby an application for restoration of the First Appeal has been dismissed. 3.
Legal Reasoning
“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. Page 5 of 13 // 6 // their bodies, agencies 29. In our view, it is the right time to inform all the and government instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 4.2. He also placed reliance on Esha Bhattacharjee –vrs.- Managing Committee of Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649, wherein Hon’ble Supreme Court discussing several case laws laid down the guidelines to consider an application for condonation of delay as under: “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1. (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. 21.2. (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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence Page 6 of 13 // 7 // on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (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. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (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. 21.9. (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. 21.10. (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. 21.11. (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. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. Page 7 of 13 // 8 // 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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. 22.2. (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. 22.3. (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. 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 4.3. He further relied upon the case of State of Odisha and others –vrs.- Sushil Kumar Biswal (in RVWPET No. 181 of 2019, disposed of on 11th August, 2021), wherein this Court relying upon State of Madhya Pradesh –vrs.- Bherulal (decision dated 15th October, 2020 in SLP(C) Diary No. 9217 of 2020) reiterated the principles of Postmaster General (supra). 4.4 Mr. Mishra, learned counsel further drew attention to the paragraphs-9 and 10 of K. B. Lal (Krishna Bahadur Lal) –vrs.- Gyanendra Pratap and others, reported in 2024 SCC OnLine SC 508, which run thus: “9. Whether an application filed by the appellant, under Order IX, Rule 7 of the CPC can be allowed, after a delay of almost 14 years, is the only question Page 8 of 13 // 9 // before us. Was there a sufficient cause for filing such a belated application? Although the term ‘sufficient cause’ has not been defined in the Limitation Act, it is now well- settled through a catena of decisions that the term has to be construed liberally and in order to meet the ends of justice. The reason for giving the term a wide and comprehensive meaning is quite simple. It is to ensure that deserving and meritorious cases are not dismissed solely on the ground of delay. 10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi, (2021) 18 SCC 384). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556). Thus, it is apparent that the words ‘sufficient cause’ in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj v. Special Land Acquisition Officer., (2013) 14 SCC 81). The for principles which are condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649, and are reproduced as under: to be kept in mind “21.1. (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. 21.2. (ii) The terms “sufficient cause” should be understood 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. their proper in Page 9 of 13 // 10 // conception encapsulate 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (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. 21.5. (v) Lack of bona fides imputable to a is a party seeking condonation of delay significant and relevant fact. 21.6. (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. 21.7. (vii) The concept of liberal approach has to of the reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (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. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence into are 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. is 21.10. (x) If concocted, or the application are fanciful, the courts should be vigilant not side unnecessarily to face such a litigation. ………………………..” (emphasis supplied) the explanation offered in the grounds urged to expose the other relevant factors to be taken Having perused the application under Order IX, Rule 7 of the CPC dated 23.11.2020, filed by the Page 10 of 13 // 11 // appellant, and the accompanying affidavit, wherein the appellant had sought the benefit of Section 5 of the Limitation Act, for condonation of a delay of almost 14 years, we find there was no satisfactory or reasonable ground given by the appellant explaining the delay. We say this for two reasons. First, it is an admitted position by the appellant himself that upon an inspection of the case file in the year 2011, he came to know about the order dated 06.09.2006, by which the Trial Court had decided to proceed ex- parte against him. What prevented the appellant from filing the application under Order IX, Rule 7 that year itself has not been satisfactorily explained at all, as the first application was only filed in the year 2017. Secondly, the explanation offered by the appellant, which is that the advocate appointed by him did not pursue the matter diligently, and then another advocate was appointed by him who inadvertently forgot to file the application does not find support from the records. What is clear is that the appellant has been grossly negligent in pursuing the matter before the trial court. Thus, the trial court, the revisional court as well as the High Court, were correct in dismissing the belated claim of the appellant. We find no reason to interfere with the impugned order dated 19.05.2022 of the High Court of Judicature at Allahabad.” 5. Taking into consideration the submissions made by learned counsel for the parties and summarizing the principles laid down in aforesaid case laws, it can be safely concluded that no different period of limitation is provided for State and its functionaries. The officers of the State and its functionaries are qualified officers, who understand the law better than a common citizen. When they are paid to serve the citizen and protect the interest of the State, they are expected to be diligent to their duties and responsibilities. When they fail to protect the interest of the State, what a common citizen would expect from them. Page 11 of 13 // 12 // The instant case is a bright example of serious laxity on the part of the State officials in protecting the interest of the State. In the instant case, there is an inordinate delay of more than 15 years in filing the RFA. For non-payment of requisite court fee in spite of several opportunities, learned Additional District Judge was constrained to dismiss the appeal for default. Further, there was a delay of 682 days in filing CMA No. 5 of 2020 for restoration of the RFA. The explanation given in the petition for condonation of delay, as stated above, cannot be considered as a reasonable cause, much less a sufficient cause. The unexplained inordinate delay of almost two years in filing the petition for restoration of RFA exhibits an indifferent attitude of the Officers in pursuing the matter before the appellate Court. Limitation takes away the remedy, though not the right. As observed by Hon’ble Supreme Court in the aforesaid case laws, it clearly states that the State and its functionaries should not be treated differently in the matter of condonation of delay. Official process cannot be a cause to condone the delay. In the instant case, no detail particulars of the events stated in the petition for condonation of delay has been given. The submission to exclude the period of pandemic of COVID-19 cannot be accepted as by the time pandemic broke out, there was already a delay of more than one year. Further, the limitation once started does not abate. 6. On a close reading of the impugned order, this Court finds that learned Additional District Judge, Champua scrutinizing the records and discussing the point of law categorically held that no sufficient cause has been shown by the Page 12 of 13 // 13 // Petitioner to exercise the discretion for condonation of delay of 628 days in filing the CMA. Looking at the facts and circumstances of the case, it is apparent that the Petitioner was thoroughly negligent in pursuing the litigation before learned Appellate Court. As such, learned Appellate Court has committed no error in dismissing the CMA. While parting with the order, I am constrained to hold that the CMP is also filed after a lapse of more than 10 months from the date of the impugned order without explaining the delay. 7. Accordingly, I find no merit in the CMP, which stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-May-2024 19:18:00 Page 13 of 13
Arguments
Mr. Dash, learned Additional Government Advocate submits that RFA No.16 of 2017 was filed assailing the judgment and decree dated 23rd September, 2002 and 10th October, 2002 respectively, passed by learned Civil Judge (Senior Division), Champua in T.S. No.33 of 2000-I. At the time of filing of the appeal, proper Court fee was not paid on the memorandum of appeal for which Office had pointed out a defect. Several adjournments were sought for removal of defect, but it could not. Ultimately, the appeal was dismissed for defaultvide order dated 1st December, 2018 (Annexure-4) for Page 1 of 13 // 2 // want of removal of defects. Subsequently, CMA No. 5 of 2020 was filed for restoration of RFA No. 16 of 2017 along with an application for condonation of delay. The application for condonation of delay was dismissed vide order dated 22nd November, 2022 (Annexure-6). Consequently, the CMA was also dismissed. Assailing the same, this CMP has been filed. 3.1 Mr. Dash, learned Additional Government Advocate fairly concedes that there was a delay of 387 days in filing the CMA for restoration of the First Appeal. It was stated in the petition for condonation of delay [Annexure-5(a)] that since the RFA was dismissed for default on 1st December, 2018, the CMA for restoration was required to be filed by 1st March, 2019. But, the same was filed on 25th September, 2020. There was a delay of one year and 22 days till 23rd March, 2020 when Covid-19 pandemic broke out. Thus, the period after the said date should be excluded from the limitation period. After Tahasildar, Champua came to know about the dismissal of the RFA, he wrote to Collector, Keonjhar for sanction of money for filing payment of court fee. Thereafter, General Election notification was made and both the Petitioners were given election duty for which the petition for restoration could not be filed till June, 2019. At this stage, the Tahasildar, Champua was transferred. As such, the petition for restoration could not be filed till January, 2020. When it was all set to file the restoration application during the month of February, 2020, Covid-19 broke out. The Petitioners being State of Odisha, some official process had to be followed. Thus, delay in filing the petition for restoration should be considered liberally to protect the interest Page 2 of 13 // 3 // of the State in particular and public in general. He submits that by dismissing the CMA No.5 of 2020, a valuable right of the State is taken away to pursue the First Appeal. He also fairly concedes that there is a delay in filing the First Appeal. Thus, the Respondents-Opposite Parties may be allowed to contest the petition for condonation of delay by taking a lenient view in restoring the First Appeal by removing the defect. In support of his case, Mr. Dash, learned Additional Government Advocate relied upon the decision in the case of Sheo Raj Singh (Deceased) through legal representatives and others –v- Union of India and another, reported in (2023) 10 SCC 531 in which it is laid down as under: refer “40. We can also profitably to Koting Lamkang (supra), cited by Mr. Sen, where the same Bench of three Hon’ble Judges of this Court which decided University of Delhi (supra) was of the view that the impersonal nature of the State’s functioning should be given due regard, while ensuring that individual defaults are not nit-picked at the cost of collective interest. The relevant paragraphs read as follows: “7. But while concluding as above, it was necessary for the Court to also be conscious of the bureaucratic delay and the slow pace in reaching a government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the Court felt that the delay in the appeal filed by the State, should not be condoned. 8. Regard should be had in similar such circumstances to the impersonal nature of the Government's individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by the functioning where Page 3 of 13 // 4 // State are lost for individual default, those who are at fault, will not usually be individually (emphasis supplied) affected.” He also relied upon the case law in State of Manipur and others –v- Koting Lamkang, reported in (2019) 10 SCC 408, which was relied upon by the Hon’ble Supreme Court in Sheo Raj Singh (supra). He, therefore, submits that when the litigant is a State, a lenient view should be taken in the matter of condonation of delay giving due weightage to the impersonal nature of State’s functioning. Accordingly, he prays for setting aside the impugned order under Annexure-6 and to direct learned Appellate Court to restore the appeal. 4. Mr. Mishra, learned counsel for Opposite Parties vehemently objects to the same and submits that right from filing of the appeal till filing of the CMP, the Petitioner is thoroughly negligent. T.S. No.33 of 2000-I was decreed in favour of Opposite Parties vide judgment dated 23rd September, 2002. But the First Appeal was filed in the year, 2017 and registered as RFA No. 16 of 2017. There is a delay of more than 15 years in filing the appeal. Defect pointed out by the Office in filing the appeal was not removed and several adjournments were sought for removal of defect. Ultimately, learned Appellate Court refusing the prayer for adjournment dismissed the appeal for default on 1st December, 2018. CMA No.5 of 2020 was also not filed within the stipulated time. There was a delay of 628 days in filing the CMA. Thus, learned Appellate Court considering the matter in its proper prospective and negligence on the part of the Petitioner in pursuing the matter, rejected the Page 4 of 13 // 5 // CMA holding that no sufficient cause has been shown for condonation of inordinate delay of 628 days. He further submits that although the impugned order was passed on 22nd November, 2022, the CMP was filed on 14th August, 2023, i.e. after a lapse of ten months. He, therefore, submits that the Petitioners are negligent at all stages in asserting the right, if any, over the disputed land. He, therefore, prays for dismissal of the CMP. 4.1. In support of his submission Mr. Mishra, learned counsel relied upon the case of Postmaster General and others - vrs.- Living Media India Ltd. and another, reported in (2012) 3 SCC 563 in which Hon’ble Supreme Court held as under: