Divisional Sports Officer And ORS. v. Umashankar Sahu

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.337 of 2009

1. Divisional Sports Officer, Office of Superintendent of Police Jagdalpur, District Bastar (CG)

2. Government of Chhattisgarh, Through the Collector, Bastar, Collector Office Jagdalpur, District Bastar (CG) ---- Appellants/Defendants

Versus

Umashankar Sahu, S/o. Shri Biharilal Sahu, Aged about 40 years, R/o. Pratapganj, Pro. Yugat Sound Service Jagdalpur, District-Bastar (CG) ---- Respondent/Plaintiff For Appellants/Defendants :Mr.Jitendra Pali, Advocate For Respondent/Plaintiff: Mr.R.S.Patel, Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 02/11/2020 1.

The substantial question of law involved, formulated and to be answered by this Court in this defendants' second appeal is as under:- "Whether the first appellate Court was justified in dismissing the appeal of the appellants/defendants by rejecting the application for condonation of delay holding that sufficient cause has not been shown for 7 days' delay in filing the appeal ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

2.

The plaintiff's suit was decreed decreeing an

amount of ₹ 34,400/- in his favour with interest at the rate of 6%, against which, the defendants preferred first appeal with 7 days' delay along with an application for condonation of delay. The first appellate Court rejected the application for condonation of delay holding that there is no affidavit in support of application for condonation of delay and consequently, dismissed the appeal, against which, this second appeal under Section 100 of the CPC has been preferred by the appellants/defendants, in which substantial question of law has been formulated by this Court, which has been set-out in the opening paragraph of this judgment for sake of completeness.

3.

Mr.Jitendra Pali, learned Deputy Advocate General for the appellants/defendants, would submit that the first appellate Court went too technical in rejecting 7 days' delay application as sufficient cause has been shown for not preferring the appeal within time as DSP, officer in-charge, remained busy in administrative work and could not prefer appeal right in time. Therefore, the first appellate Court ought to have condoned the delay of 7 days' in filing the appeal as there is no counter-affidavit controverting the statement made in the application for condonation of delay, as such, the delay be condoned and the matter be

remitted to the first appellate Court for deciding the appeal afresh.

4.

On the other hand, Mr.R.S.Patel, learned counsel for respondent/plaintiff, would support the impugned judgment.

5.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

6.

It is well settled law the Courts should adopt an justice-oriented approach in considering the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. 7.

In the matter of N. Balakrishnan V. M.

Krishnamurthy1, it has been held by the Supreme Court that the sufficient cause has to be construed liberally especially when the delay is not deliberate 1 (1998) 7 SCC 123

and malafide. Relevant portion of the report held as under:- "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitation newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy.

Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be putt to litigatin). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilaory tactics but seek their remedy promptly. The idea is that every legal remedy must be kep alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause"

under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs.

The Administrator, Howrah Municipality [AIR 1972 SC749]."

8.

Recently, the Supreme Court in the matter of Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy and others2 has laid down the principles for deciding application for condonation of delay, which has been followed by this Court in the matter of Pradeep Majumdar V. Duvas Bai and others3. Para 21 of the Esha Bhattacharjee (Supra) states as under:- "21. 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 factsituation. 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.

2 JT 2013 (2) SC 450 3 2013 (4) B.L.J. 433

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 encapsule 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, behavior 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."

9.

Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the above-stated judgments (supra), it is quite vivid that though affidavit was not filed in support of application for condonation of delay and option available to the first appellate Court was to direct the appellants therein to file affidavit in support of application for condonation of delay, but it could not have been rejected on sole ground without considering the merits of the condonation application for delay in filing the appeal.

10.

A careful perusal of the aforesaid application would show that sufficient cause has been shown as 7 days' delay has been explained in filing the appeal as DSP concerned remained busy in the official work/government work and could not prefer the appeal right in time.

11.

Accordingly, delay of 7 days' in filing the appeal is condoned and dismissal of first appeal is set aside. The matter is remitted to the first appellate Court for deicing the appeal on merits. The first appellate Court shall decide the appeal within 45 days from the date of receipt of copy of this order. 12.

The second appeal is allowed to the extent

indicated hereinabove. Records be sent to the first appellate Court forthwith. No cost(s).

Sd/- (Sanjay K.Agrawal) Judge B/-