Smti.Nasima Bibi And ORS. v. The Airport Director And ANR

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE BIBHAS RANJAN DE CO/8/2025 Smt. Nasima Bibi and others ... Petitioners Vs The Airport Director and another ... Respondents For the petitioners : Mr.Gopala Binnu Kumar For the Opposite Party No. 1 : Ms. A.S.Zinu For the Opposite Party No. 2 : Ms. Babita Das Heard on : February 27, 2025 Judgement on : March 3, 2025 BIBHAS RANJAN DE, J.

1.

Challenge is the order dated 28.01.2025 passed in connection with other appeal No. 14 of 2024 wherein learned District Judge condoned the delay of 1749 days in filing the appeal on payment of cost of Rs. 30,000/-.

2.

Mr. Gopala Binnu Kumar, learned counsel appearing on behalf of the petitioner has graciously brought to my notice the orders annexed with the instant revision application, thereby facilitating a more comprehensive understanding of the matter at hand. 3.

Upon meticulous examination of the application, accompanied by the supporting documents it becomes evident that the petitioner took

out a suit for permanent injunction registered as Other Suit No. 108 of 2017 which was decreed ex-parte against the defendants. Thereafter petitioner of this revisional application filed Other Appeal No. 7 of 2020 on 15.06.2020 assailing a portion of the ex-parte decree passed by the learned Civil Judge, Junior Division- I at Port Blair on 23.09.2019. 4.

It is evident from the order dated 30.12.2020 that the respondent was formally apprised of the appeal, as the notice thereof was duly received by them on the aforementioned date.

5.

From the annexure it further appears that opposite parties/the Airport Authority of India filed Other Appeal No. 14 of 2024 on 11th July, 2024 assailing the ex-parte order dated 23.09.2019 passed by learned Civil Judge Junior Division-I, Port Blair along with an application for condonation of delay of 1749 days in filing appeal, under Section 5 of the Limitation Act.

6.

Mr. Kumar has brought to my notice the pertinent paragraphs 4 to 9 of the application submitted under Section 5 of the Limitation Act on behalf of the OP/respondent, and has astutely pointed out that a glaring omission exists, as there is a conspicuous lack of explanation in the application for condoning delay that has occurred from December 30, 2020, up until the date when the OP received the summons on July 11, 2024.

7.

In a parting remark, Mr. Kumar has additionally submitted that the suit was decreed ex-parte prior to Covid-19 period (24th March, 2020 to last month of 2021). In that case also Airport Authority of

India did not explain the cause of delay for the period from the last month of 2021 till the date of filing of the Other Appeal No. 14 of 2024 on 11th July, 2024.

8.

In a compelling display of legal acumen, Mr. Kumar bolstered his argument by invoking a recent judgement (Civil Appeal No. 317 of 2025 H.Guruswamy & others vs A. Krishnaiah) dated 08.01.2025 rendered by the esteemed Hon'ble Apex Court in a precedent-setting case, thereby lending considerable weight to his contention particularly relying on paragraph 13 to 19 as follows:- "13. We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and 9restraints, which a judge is expected to maintain while adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against

the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the 10opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time.

18. For all the foregoing reasons this appeal succeeds and is hereby allowed.

19. The impugned order passed by the High Court is set aside and that of the Trial Court dated 05.08.2014 passed in Misc. No. 223 of 2006 is hereby restored." 9.

Referring to the aforesaid judgement passed by the Hon'ble Apex Court, Mr. Kumar has submitted that Hon'ble Apex Court dealt with a delay of about 2200 days in disposing the writ petition No. 7220/2024. 10.

Ms. A.S.Zinu, learned counsel appearing on behalf of the Airport Authority of India/ opposite party herein has contended that delay has duly been explained in the application under Section 5 dealt with by the learned District Judge in his order dated 28.01.2025 in connection with Other Appeal No. 14 of 2024 filed by the Airport Authority of India /opposite party herein.

11.

Ms. Zinu has further submitted that delay was condoned by the learned appellate court subject to payment of huge costs. Ms. Zinu has further contended that Opposite Party/ Airport Authority of India did

not authorize any advocate to appear on behalf of the respondents in Other Appeal No. 7 of 2020.

12.

Ms. Zinu has relied on the ratio of following decisions:  State of Manipur and others vs. Koting Lamkang reported in 2019 (1) SCC 408.

 Sheo Raj Sigh (Deceased) Through Lrs. And others vs Union of India and another reported in (2023) 10 SCC 531. 13.

In order to consider a prayer for condonation of delay, it is the Court's solemn duty to meticulously scrutinize the circumstances and satisfy itself that a legitimate cause of delay existed, and that the delay has been adequately and satisfactorily explained. 14.

In the case at hand even if we assume that opposite party/Airport Authority of India could not take steps against the ex-parte decree during the Covid period from 24th March, 2020 till last month of 2021, but neither cause of delay nor any explanation has been given for the period from last month of 2021 till 11th July, 2024 save and except explanation of change of Directors of Airport Authority or tremendous pressure for completing the new International Terminal. 15.

Hon'ble Apex Court in H. Guruswamy (supra) dealt with a prayer for condonation of delay in connection with a suit between two individuals unlike the factual matrix of Koting Lamkang (supra) and Sheo Raj Singh (supra) wherein Hon'ble Apex Court dealt with a prayer

for condonation of delay in respect of a dispute between an individual and State/Union of India.

16.

In Koting Lamkang (supra) Hon'ble Apex Court handed down the following principles in paragraphs Nos. 8, 9, 10 and 12:- "8. 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.

9. Regard should be had in similar such circumstances to the impersonal nature of the Government's functioning where 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 State are lost for individual default, those who are at fault, will not usually be individually affected.

10. In the the instant case under the decree passed against the defendants i.e. the State of Manipur, the Director General of Police and the Commandant of 8th battalion of the Manipur rifles, the appellants are to vacate and handover the Schedule "C" and "D" land, which is projected to be an area of strategic importance by the appellants. Therefore we feel that it is necessary for making available to the appellants a legal forum, which could consider their challenge to the decree obtained by the plaintiff from the Civil Judge (senior division) Chandel, in the O.S. no. 4 of 2015.

12. Therefore to avoid injustice to the State's interest and considering the special circumstances in the matter at issue, we deem it appropriate to exercise our jurisdiction under Article 136 of the Constitution of India and interfere with the impugned order of the High Court of Manipur. The delay in filing the first appeal is condoned. This shall however be subject to payment of costs of Rs. 50,000/(Rupees fifty thousand) by the appellants in the High Court. In the result, the Regular First Appeal preferred by the appellants is directed to be restored and considered on its own merits.

Considering the rival contentions on possession being taken over/not taken over and the execution proceedings stated to have concluded on 11.07.2018, the issue of possession and finalisation of the execution is made subject to the final decision of the High Court, in the RFA No. 5 of 2017." 17.

In Sheo Raj Singh (Supra) Hon'ble Apex Court held in paragraph 30 to 37 reproduced below:- "30. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the question. Law is fairly wellsettled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".

31. The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decisions in Mst. Katiji (supra), Ramegowda (supra), Chandra Mani (supra), K.V. Ayisumma (supra) and Lipok AO (supra) were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. v. Bherulal is one such decision apart from University of Delhi (supra)] which have not accepted governmental lethargy, tardiness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above. We find that the High Court in the present case assigned the following reasons in support of its order:

a. The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself,

would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice. b. The expression sufficient cause is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail. c. It is upon the courts to consider the sufficiency of cause shown for the delay, and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further, the merits of a claim were also to be considered when deciding such applications for condonation of delay.

d. Further, a distinction should be drawn between inordinate unexplained delay and explained delay, where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and the government counsel on record before the Reference Court.

e. The officer responsible for the negligence would be liable to suffer and not public interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.

32. Given these reasons, we do not consider discretion to have been exercised by the High Court in an arbitrary manner. The order under challenge had to be a clearly wrong order so as to be liable for interference, which it is not.

33. It is now time to distinguish the two decisions on which Mr. Sharma heavily relied on.

34. Balwant Singh (supra) arose out of a landlord-tenant dispute. Our thought process need not be guided by the law laid down on what would constitute 'sufficient cause' in a dispute between private parties to a case where the Central Government is a party.

35. According to Mr. Sharma, University of Delhi (supra) is a decision by a larger Bench and, therefore, binding on us. This Court, while deciding University of Delhi (supra), was seized of a situation where even if the delay were to be condoned, it would cause grave prejudice to the respondent Delhi Metro Rail Corporation at the instance of the casual approach of the appellant University. This Court, on the argument of nonavailability of the Vice Chancellor for granting approval to file the appeal, and other reasons put

forth in the matter, could not conclude that there was fulfilment of sufficient cause for condonation of delay; hence, the refusal to condone the delay. The decision really turns on the facts before this Court because of the prejudice factor involved.

36. We can also profitably refer 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 functioning where 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 State are lost for individual default, those who are at fault, will not usually be individually affected."

(underlining ours, for emphasis)

37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

18.

In the case at hand Airport Authority of India admittedly did not explain each day's delay for the period from 31.12.2020 to 11.07.2024. The explanation made in petition for condonation of delay spells out that the learned counsel on behalf of the petitioner did not appear in the matter while suit was heard ex parte and subsequent explanation discloses the laches on the part of the Directors during the period from 21.09.2022 to 04.07.2023. It was further explained that the Director was under tremendous pressure in connection with new International Airport Terminal. However, the explanation made in the application cannot be said to be day to day explanation within the meaning of Section 5 of the Limitation Act.

19.

However, in light of precedent set by the esteemed Koting Lamkang (supra) and Sheo Raj Singh (supra) as well as particular facts and circumstances of the case at hand I am constrained to defer to the prudent discretion exercised by the learned District Judge, and thus, I refrain from intervening in the matter, particularly relying on the eloquent observation in paragraph 37 of the Hon'ble Apex court in Sheo Raj Singh (supra) which runs as follows:- "37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden

forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

20.

Thus, in accordance with the aforementioned stipulations, the revision application hereby stands formally dismissed, its fate sealed by the weight of precedent and the unwavering principle of justice. 21.

Parties are directed to act on the website copy of this judgement duly downloaded from the official website of this Court. (Bibhas Ranjan De, J)