IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM; NAGALAND; MIZORAM & ARUNACHAL PRADESH) I.A. (Civil) 82/2016 In MAC APP SL. NO , I.A. (C) /2016, CAVT. 410/2016 Cholamandalam MS General Insurance Company Limited - Versus - Appellant 1. Smti. Kalpana Kumari Deka, 2. Miss Dixita Deka, 3. Master R. K. Seemran Deka, 4. Smti. Kamala Deka, 5. Smti. Jaya Das, 6. Sri Kamal Deka BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA - Respondents For the applicant : Mr. R. Goswami. For the respondents : Mr. K. Gogoi. Date of hearing & judgment : JUDGMENT & ORDER (ORAL)

2 I.A.(Civil) 82/2016 In MAC APP SL.NO , I.A.(C) /2016, CAVT. 410/2016 BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Heard Mr. R. Goswami, learned counsel for the applicant as well as Mr. K. Gogoi, learned counsel for the respondent Nos. 1 to 4. The learned counsel for the applicant states that the respondent No. 5 is the owner of the vehicle and in the present case, he is not a necessary party and prays to strike out the name of the respondent No. 5. The said prayer is allowed at the risk of the applicant. None appears for the respondent No. 6 although service on the said respondent is completed. By filing this application under Section 5 of the Limitation Act, the applicant has prayed for condoning the delay of 92 days beyond the period of limitation in filing the connected appeal. The delay is explained in paragraph 2 of the application, wherein it has been stated that the official formalities of taking the opinion and getting approval from various office including the head office of the applicant at Chennai took some time and in the process, the delay of 92 days beyond the period of limitation has occurred in filing the appeal. Learned counsel for the respondent Nos. 1 to 4, by filing affidavitin-opposition on , has vehemently objected the prayer of the applicant. It has been stated that the impugned judgment and award was passed in the presence of the parties and therefore, the plea that some time was presumed to file the appeal has not been explained. Learned counsel for the respondent Nos. 1 to 4 has referred to the following cases:- (i) Manjit Singh Legal Heirs of Sena Singh and Anr. vs- G. M. Assam state Road Transport Corporation and Ors 2003 (3) GLT 443.

3 (ii) State of Mizoram and Anr. vs- V. S. Pillai and Anr 2005 (4) GLT 188. (iii) Union of India (Railways) vs- Manipur Tea Trading Company 2008 (4) GLT 897. (iv) Commissioner of Wealth Tax, Bombay vs- Amateur Rides Club, Bombay (1994) Supp (2) SCC 603. (v) Basawaraj and another vs- Special Land Acquisition Officer (2013) 14 SCC 81. By referring to the same, it is submitted that in the present case in hand, the explanation is incapable of furnishing a judicially acceptable ground for condoning the delay. He submits that in the case of Commissioner of Sale Tax (supra), the Hon ble Supreme Court has rejected the application for condoning the delay by stating that the affidavit is a stereotype affidavit and that the revenue is seem to attach any importance to the need of promptitude even where it affects its own interest. It is also submitted that as per the case of Basawaraj and another (supra), the delay of 5 ½ years in filing the appeal was not condoned by holding that no Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. By referring to the case of Manjit Singh (supra), the learned counsel for the respondent Nos. 1 to 4 submits that even if no objection has been filed by the respondent to the prayer of condonation, it is the duty of the Court to consider the question of delay in preferring the appeal independent of the fact whether any objection had been filed or not and this Court in the said case did not find the ground sufficient to condone the delay of 1 years 2 months 27 days, the answer of the question for condonation of delay was answered in the negative and dismissed. By referring to the case of State of Mizoram (supra), it has been submitted that this Court had not condoned the delay of 103 days beyond the period of limitation in filing the writ appeal and the relevant paragraph 9 and 10 are quoted below:-

4 9. A Division Bench of this Court in a case of Union of India v. Wood Crafts Products Ltd. and Anr. reported in 2001 (1) GLT 34 in paragraph- 14 held as under: 14. Under the concept of welfare state, in order to promote social justice, it is the bounden duty of the State to protect and preserve the public interest and public fund. Since public exchequer is incurring heavy expenses on the different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the Officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal is bound to he condoned, taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of those cases where sufficient causes were shown and proved. 10. Having regard to the above cited cases and also upon hearing the learned Counsel for the parties, this Court is disinclined to accept the explanations so set out in the abovementioned paragraphs as no sufficient cause has been shown therein seeking the condonation and accordingly the prayer for condonation of delay is rejected. Learned counsel for the respondent Nos. 1 to 4 by referring to the case of Union of India (supra) has stated that the explanation tented by the applicant in that case was not found to be sufficient. Therefore, the delay of 520 days in filing the appeal was not entertained. The relevant paragraph 19 and 20 are quoted below:- 19. From the ratio laid down by the Apex Court as well as this Court in the cases discussed above, it is crystal clear that discretionary power of this Court for extension of the prescribed period of limitation of the concerned application or/appeal under Section 5 of the Limitation Act, 1963 could be exercised only when there are reasonable explanation or/sufficient cause as contemplated in Section 5 of the Limitation Act. 20. It is also fairly well settled that the question as to whether or not there is sufficient cause or/reasonable explanation for condonation of delay is to be decided on the facts and circumstances of the given case. In the present case as discussed above, this Court is of the considered view that there is no reasonable explanation or/sufficient cause for condoning the delay of 520 days in filing the accompanying review petition. Accordingly, the present application for condonation of delay is devoid of merit and hereby dismissed. Coming to the present case at hand, it is seen that the applicant has given the following explanation for the delay. It has been stated

5 that the impugned judgment and award dated , which was passed by the learned Tribunal was received by the dealing office on , recommending for satisfaction of the judgment and award. Thereafter, the Guwahati Office sought for some clarification from the dealing advocate and those were provided on and the record as well as opinion of the lawyer was forwarded to the head office at Chennai on It has been stated that the head office was not satisfied with the opinion of the conducting lawyer and asked the dealing office to consult the conducting lawyer. The said advocate on advised the applicant to file an appeal. The said opinion was referred to the head office, who concurred with the said opinion and advised the Guwahati Office on to file an appeal and accordingly, the dealing office advised the learned counsel to file the appeal and accordingly, the appeal was prepared and filed on In order to counter the various case submitted by the learned counsel for the respondent, learned counsel for the applicant has referred to the case of Bank of India vs- M/s Mehta Brothers and others AIR 1991 Delhi 194 and specifically referred to paragraph 27, which is quoted below:- 27. In Collector, Land Acquisition, Anantnag v. Mst. Katiji,, the Supreme Court observed that it had been making a justifiably liberal approach with reference to the expressions sufficient cause and held that this expression was adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice and that being the life-purpose for the existence of the institution of the Courts. The court laid down six principles of which I find the following principles to be relevant in this case :- 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a case would be decided on merits after hearing the parties. 4.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. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

6 He also refers to the case of State of Nagaland vs- Lipok Ao and Others (2005) 3 SCC 752. In the said case, the Hon ble Supreme Court in paragraph 15 states as follows:- 15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. It may be pertinent to mention here that in all the cases cited by the learned counsel for the respondent, it is seen in all the cases that the prayer was to condone the delay exceeding 92 days, which is the period of limitation sought to be condoned in the present application. In the case of Manjit Singh Legal Heirs of Sena Singh and Anr. (supra), the appeal was barred by 1 years 2 months 27 days, in the case of State of Mizoram and Anr. (supra), the prayer was to condone the delay of 103 days, in the case of Union of India (Railways) (supra), the prayer was to condone the delay of 520 days, in the case of Basawaraj and another (supra), the prayer was to condone the delay of 5 ½ years, in the case of Commissioner of Wealth Tax, Bombay (supra), the prayer was to condone the delay of 264 days. On the contrary in the present case in hand, there has been a conflict of opinion received by the applicant from their lawyer and in the

7 first opinion, the applicant was advised to make the payment and in the second opinion, there was an advised to file an appeal. It is also acceptable for the public interest to take concurrence from the concerned office as well as head office for filing the appeal in the said procedure cannot be faulted with. In the present case, it is also seen that the various authorities of the applicant had moved with the required promptitude and therefore, the delay cannot be said to be either deliberate or vitiated by negligence on the part of the applicant to take steps with promptitude as desired. Therefore, the ratio of the cases cited by the learned counsel for the respondent Nos. 1 to 4 is not found to be in pari materia with the facts of the present case at hand. Therefore, in the opinion of this Court, the causes shown by the applicant is accepted as a good and sufficient cause for condoning the delay. Accordingly, the delay of 92 days beyond the period of limitation is herby condoned. The application stands allowed. In view of the order passed herein, the Registry may now register the appeal and list the same for admission. As learned counsel has entered appearance on behalf of the respondent/caveator, their names may be shown in the Cause List by listing the connected appeal. Kalpana JUDGE