Dismissed

The State of Mah, Thr Collector,Gadchiroli and 2 Ors. v. Nawalkishore S/O Parasramaji Kabara

Bombay HC25 Apr 2024SA/355/2009

Case brief

AI extract

What is this about?

The State challenged refusal to condone a 14-month delay in filing appeal against a decree. The High Court found the affidavit gave only vague explanations for the inordinate delay, held sufficient cause was not shown, answered the substantial question against the State and dismissed the second appeal.

What the court decided

AI extract

The State of Mah, Thr Collector,Gadchiroli and… — Civil Procedure and Limitation | Bombay HC (2024)

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2024:BHC-NAG:4790

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15A-SA-355-2009.odt 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

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SECOND APPEAL NO. 355 OF 2009

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1] The State of Maharashtra, through Collector, Gadchiroli, District – Gadchiroli.

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2] Sub-Divisional Officer, Desaiganj, Tahsil – Desaiganj, District – Gadchiroli.

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3] Naib Tahsildar, (Nazul), Desaiganj, Tahsil – Desaiganj, District – Gadchiroli.

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 ...APPELLANTS

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Versus

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Nawalkishore Parasramji Kabra,
aged about 42 years, Occ. Business,
R/o Desaiganj, Tah. Desaiganj,
District – Gadchiroli.

¶11

...RESPONDENT

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Ms D.V. Sapkal, A.G.P. for the appellants/State.
Shri M.M. Agnihotri and Shri P.L. Sagdeo, Counsel for the
respondent.

¶13

CORAM : ANIL L. PANSARE, J.

¶14

 ARGUMENTS WERE HEARD ON : APRIL 22, 2024
JUDGMENT IS PRONOUNCED ON : APRIL 25, 2024

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JUDGMENT :

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Heard Ms D.V. Sapkal, learned A.G.P. for the

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appellants and Shri M.M. Agnihotri, learned Counsel for the
respondent.

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15A-SA-355-2009.odt 2

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2]The appeal has been admitted on the following
substantial questions of law :

¶20

“1.Whether the learned trial Judge was justified in
decreeing the suit filed by the respondent in absence of
letter dated 16/3/2004 as well as without considering
the effect, if any, to the Government Resolutions,
which, according to the appellants, were not applicable
to the respondent.

¶21

2.Whether the lower appellate Court has arrived at
perverse finding of fact to the effect that no sufficient
cause has been shown by the appellant in filing the first
appeal beyond the period of limitation.”

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3]The appellant/State of Maharashtra is aggrieved by

¶23

order dated 1/10/2008 passed by the Principal District Judge,
Gadchiroli in Misc. Civil Application No. 19/2008 refusing to
condone delay of 14 months 10 days in filing appeal against
the judgment and decree dated 2/4/2007 passed by the Civil

¶24

Judge Senior Division, Gadchiroli in Regular Civil Suit No.
10/2005.

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4]Shri M.M. Agnihotri, learned Counsel for the

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respondent submits that the first substantial question of law
can only be answered if the second substantial question of law

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is answered in the affirmative. He submits that the first

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15A-SA-355-2009.odt 3

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substantial question of law refers to the merits of the case and
the Court may go into the merits of the case only upon
satisfying itself that the appellants have shown sufficient cause
to condone the delay in filing appeal.

¶30

5]The First Appellate Court has held that the
appellants failed to show sufficient cause. Unless this finding is
over-turned, the learned Counsel submits, this Court need not
consider the first substantial question of law. He has invited my
attention to the judgment of the Hon’ble Supreme Court in the
case of Pathapati Subba Reddy (Died) by LRs and Ors. Vs. The
Special Deputy Collector (LA) [MANU/SC/0285/2024],
wherein the Court, after referring to various rulings on law of
limitation, has held in paragraph 26 as under :

¶31

“26. On a harmonious consideration of the provisions
of the law, as aforesaid, and the law laid down by this
Court, it is evident that:

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(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;

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(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end or
cease to exist after a fixed period of time;

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(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be

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15A-SA-355-2009.odt 4

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construed in a strict sense whereas Section 5 has to be
construed liberally;

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(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause of
substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;

¶38

(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient
cause is established for various factors such as, where
there is inordinate delay, negligence and want of due
diligence;

¶39

(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled to
the same benefit if the court is not satisfied with the
cause shown for the delay in filing the appeal;

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(vii) Merits of the case are not required to be
considered in condoning the delay; and

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(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the delay
and condoning the delay for the reason that the
conditions have been imposed, tantamounts to
disregarding the statutory provision.”

¶42

(emphasis supplied)

¶43

Thus, what has been said by the Supreme Court is

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that merits of the case are not required to be considered in
condoning the delay. Thus, merits cannot be looked into to
condone the delay and in that sense, Shri Agnihotri, learned
Counsel is correct in contending that unless delay is justified,
this Court need not answer the first substantial question of law,

¶45

which relates to the merits of the case.

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15A-SA-355-2009.odt 5

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6]Coming to second question of law, the First
Appellate Court noted that the appellants led evidence on
affidavit, but the witness has merely referred to various stages
by which opinion of Government Officials, was sought. The
First Appellate Court noted that the application does not
disclose satisfactory explanation to condone the delay and
accordingly rejected the application.

¶48

7]The learned A.G.P. submits that the First Appellate
Court has adopted technical approach while rejecting the
application. She has relied upon the judgment of the Supreme
Court in the case of Sheo Raj Singh (Deceased) Through Legal
Representatives And Others Vs. Union of India And Another
[(2023) 10 SCC 531] to contend that the First Appellate Court
ought to have adopted a liberal and justice-oriented approach
and certain leeway ought to have been provided to the State.
I’ll come back to this judgment a little later. The reasons put
forth for condoning the delay should be considered first.

¶49

8]The witness, in his affidavit before the First

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15A-SA-355-2009.odt 6

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Appellate Court, states that the judgment and decree was
delivered on 2/4/2007. The District Government Pleader,
Gadchiroli issued a letter to that effect and was served upon
the Naib Tahsildar, who was defendant no.3 before the trial
Court. The concerned Naib Tahsildar was transferred and the
said letter was misplaced and, therefore, no cognizance was
taken to prefer an appeal. The Sub-Divisional Officer was also
transferred. The subsequent officer joined on 12/5/2008 and
came to know about the judgment from the office of applicant
no.3, i.e., Naib Tahsildar. It appears that the Naib Tahsildar had
written a letter dated 29/5/2008, whereupon the Sub-
Divisional Officer, Desaiganj came to know of the judgment and
decree passed by the Courts below, which was passed one year
ago.

¶52

9]The affidavit, however, is completely silent as to
what transpired in one year or what steps were taken by the
concerned officials and why was suddenly a letter written on
29/5/2008. In other words, there is no explanation as to why
step taken on 29/5/2008 was not taken prior thereto. What

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15A-SA-355-2009.odt 7

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has been said is that the letter was misplaced at the office of
Naib Tahsildar. When was letter misplaced and when was letter
found, is not disclosed. The affidavit is further silent as to why
applicant nos. 1 and 2, i.e., the Collector, Gadchiroli and the
Sub-Divisional Officer, Desaiganj were not made aware of the
judgment and decree, either by the District Government
Pleader or by the officer attending the Court matters.

¶55

10]The witness has then stated that applicant no.2 –
Sub-Divisional Officer, Desaiganj wrote a letter to applicant
no.1 – Collector, who in turn, instructed applicant no.2 to take
legal advise for filing appeal. Thereafter, a letter was written to
the Joint Secretary, Law and Judiciary Department, Nagpur,
seeking opinion. The affidavit then refers to the letters written
by the Under Secretary (Legal) to Government, Law and
Judiciary Department and then a letter issued to the District
Government Pleader to obtain certified copy to file appeal and
so on.

¶56

11]As could be seen, vague statements are made as

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15A-SA-355-2009.odt 8

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regards misplacement of letter, transfer of Tahsildar and Sub-
Divisional Officer concerned, sudden development of writing
letter after one year of passing the judgment and decree,
correspondences with the authorities like Collector, Joint
Secretary, Under Secretary, etc. The affidavit doesn’t really
disclose diligent approach, as expected from the officers, who
are otherwise holding very responsible posts. The Court will
expect a reasonable and acceptable explanation to condone the
delay. To expect a liberal approach, the applicants must show
that they made bona fide efforts. In the present case, except for
the generalized statements, the applicants have not assigned
any reasonable or acceptable explanation, nor can one gather,
from the affidavit, the bona fide efforts taken by the applicants
to approach the Court at the earliest point of time.

¶59

12]The Supreme Court in the case of State of Madhya
Pradesh And Others Vs. Bherulal [(2020) 10 SCC 654] has held
that law of limitation binds everybody including the
Government and deprecated the practice of keeping the file
pending for several months on the ground of administrative

¶60

15A-SA-355-2009.odt 9

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exigencies.

¶62

13]The effect of delay has been explained by the

¶63

Supreme Court in the case of Ramlal Vs. Rewa Coalfields Ltd.
[AIR 1962 SC 361]. The Supreme Court, while interpreting
Section 5 of the Limitation Act, held that the expiration of the
period of limitation prescribed for making an appeal gives rise
to a right in favour of the decree-holder to treat the decree as
binding between the parties. In other words, when the period
of limitation prescribed has expired, the decree-holder has
obtained a benefit under the law of limitation to treat the
decree as beyond challenge, and this legal right which has
accrued to the decree-holder by lapse of time should not be
lightheartedly disturbed. Thus, in the absence of sufficient
cause, legal right, which has accrued in favour of the decree-
holder by lapse of time, should not be lightheartedly disturbed.

¶64

14]On the point of condoning delay by imposing
conditions, the Supreme Court in the case of Basawaraj and
anr. Vs. The Spl. Land Acquisition Officer [AIR 2014 SC 746],

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15A-SA-355-2009.odt 10

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held as under:

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“15. The law on the issue can be summarised to the
effect that where a case has been presented in the court
beyond limitation, the applicant has to explain the
court as to what was the “sufficient cause” which
means an adequate and enough reason which
prevented him to approach the court within limitation.
In case a party is found to be negligent, or for want of
bona fide on his part in the facts and circumstances of
the case, or found to have not acted diligently or
remained inactive, there cannot be a justified ground to
condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any
condition whatsoever. The application is to be decided
only within the parameters laid down by this court in
regard to the condonation of delay. In case there was
no sufficient cause to prevent a litigant to approach the
court on time condoning the delay without any
justification, putting any condition whatsoever,
amounts to passing an order in violation of the
statutory provisions and it tantamounts to showing
utter disregard to the legislature.”

¶68

Thus, the Supreme Court has held that in case there

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was no sufficient cause to prevent a litigant to approach the
court on time, condoning the delay without any justification,
imposing any condition whatsoever, amounts to passing an
order in violation of the statutory provision and it tantamounts
to showing utter disregard to the legislature. Thus, to condone
delay by imposing costs or otherwise will amount to passing
order in violation of the statutory provisions.

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15A-SA-355-2009.odt 11

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15]The Supreme Court in the case of Pathapati Subba
Reddy (supra) has, on the law of limitation, observed in
paragraph 16 as under :

¶72

“16. Generally, the courts have adopted a very liberal
approach in construing the phrase ‘sufficient cause’
used in Section 5 of the Limitation Act in order to
condone the delay to enable the courts to do
substantial justice and to apply law in a meaningful
manner which subserves the ends of justice. In
Collector, Land Acquisition, Anantnag and Ors. v. Katiji
and Ors. MANU/SC/0460/ 1987 : 1987:INSC:54 :
(1987) 2 SCC 107 : AIR 1987 SC 1353, this Court in
advocating the liberal approach in condoning the delay
for ‘sufficient cause’ held that ordinarily a litigant does
not stand to benefit by lodging an appeal late; it is not
necessary to explain every day’s delay in filing the
appeal; and since sometimes refusal to condone delay
may result in throwing out a meritorious matter, it is
necessary in the interest of justice that cause of
substantial justice should be allowed to prevail upon
technical considerations and if the delay is not
deliberate, it ought to be condoned. Notwithstanding
the above, howsoever, liberal approach is adopted in
condoning the delay, existence of ‘sufficient cause’ for
not filing the appeal in time, is a condition precedent
for exercising the discretionary power to condone the
delay. The phrases ‘liberal approach’, ‘justice-oriented
approach’ and cause for the advancement of
‘substantial justice’ cannot be employed to defeat the
law of limitation so as to allow stale matters or as a
matter of fact dead matters to be revived and re-
opened by taking aid of Section 5 of the Limitation
Act.”

¶73

Thus, the Supreme Court has, in clear terms, held

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15A-SA-355-2009.odt 12

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that existence of sufficient cause for not filing the appeal in
time is a condition precedent for exercising discretionary power

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to condone the delay. The Court further clarified that the
phrases ‘liberal approach’, justice-oriented approach’ and cause
for the advancement of ‘substantial justice’ cannot be employed

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to defeat the law of limitation so as to allow stale matters or as
a matter of fact dead matters to be revived and re-opened by
taking aid of Section 5 of the Limitation Act.

¶78

16]The learned A.G.P. has, however, relied upon the
judgment in the case of Sheo Raj Singh (supra), wherein the
Supreme Court considered various rulings on the point of
condonation of delay and held in paragraph 41 as under :

¶79

“41. 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

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15A-SA-355-2009.odt 13

¶81

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.”

¶82

Thus, the Supreme Court, while upholding the
judgment passed by the High Court, has held that exercise of
discretion done by the High Court, at times, call for a liberal
and justice-oriented approach by the Courts, where certain
leeway could be provided to the State. The use of words ‘at
times’ is a clear indication that deviation to the rules of
limitation is otherwise not permissible. The Supreme Court has
referred to couple of cases in following terms :

¶83

“39. According to Mr Sharma, University of Delhi Vs.
Union of India [(2020) 13 SCC 745] is a decision by a
larger Bench and, therefore, binding on us. This Court,
while deciding University of Delhi, 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 non-availability 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.

¶84

40. We can also profitably refer to State of Manipur Vs.
Koting Lamkang [(2019) 10 SCC 408], cited by Mr.

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15A-SA-355-2009.odt 14

¶86

Sen, where the same Bench of three Hon’ble Judges of
this Court which decided University of Delhi 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 :

¶87

“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.

¶88

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.”

¶89

17]The Supreme Court, while highlighting the aspect
of protecting the interest of institution, has also observed that
the law of limitation will have to be implemented, though

¶90

would harshly affect the party. Thus, at the end of the day, the
delay will have to be condoned only upon showing sufficient
cause. At the same time, the institutional interest of the State
will have to be considered but then the default of individuals

¶91

cannot be ignored as well.

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15A-SA-355-2009.odt 15

¶93

18]The default will have to be dealt with in terms of
Section 10 of the Maharashtra Government Servents
Regulation of Transfers and Prevention of Delay in Discharge of
Official Duties Act, 2005 (for short “the Act of 2005”), which
reads thus :

¶94

“10. (1) Every Government servant shall be bound to
discharge his official duties and the official work
assigned or pertaining to him most deligently and as
expeditiously as feasible :

¶95

Provided that, normally no file shall remain
pending with any Government servant in the
Department or Office for more than seven working days

¶96

¶97

Provided further that, immediate and urgent files
shall be disposed of as per the urgency of the matter, as
expeditiously as possible, and preferably the immediate
file in one day or next day morning and the urgent file
in four days :

¶98

Provided also that, in respect of the files not
required to be referred to any other Department, the
concerned Department shall take the decision and
necessary action in the matter within forty-five days
and in respect of files required to be referred to any
other Department, decision and necessary action shall
be taken within three months.

¶99

(2) Any wilful or intentional delay or negligence
in the discharge of official duties or in carrying out the
official work assigned or pertaining to such
Government servant shall amount to dereliction of
official duties and shall make such Government servant
liable for appropriate 1.[disciplinary action under the
All India Services (Discipline and Appeal) Rules, 1969,
the] Maharashtra Civil Services (Discipline and Appeal)
Rules, 1979 or any other relevant disciplinary rules
applicable to such employee.

¶100

(3) The concerned competent authority on noticing or

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15A-SA-355-2009.odt 16

¶102

being brought to its notice any such dereliction of
duties on the part of any Government servant, after
satisfying itself about such dereliction on the part of
such Government servant shall, take appropriate
disciplinary action against such defaulting Government
servant under the relevant disciplinary rules including
taking entry relating to such dereliction of duty in the
Annual Confidential Report of such Government
servant.”

¶103

19]As could be seen, sub-section (1) of Section 10 of
the Act of 2005 provides that every Government servant shall
discharge his official duties assigned or pertaining to him most
diligently and expeditiously and that no file shall remain
pending with any Government servant in the department,
usually for more than seven working days. Thus, additional
time taken will have to be properly justified. In addition, Rules
10 to 13 of the Maharashtra Prevention of Delay in Discharge
of Official Duties Rules, 2013 (for short “the Rules of 2013)
provides for detailed mechanism to prevent/avoid delay.
Despite such a provision and several judgments of the Supreme
Court deprecating casual approach in processing files, there is
no improvement.

¶104

20]There is a reason for the same and the reason is not

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15A-SA-355-2009.odt 17

¶106

taking action, provided under sub-sections (2) and (3) of
Section 10. It is unfortunate that the effect of sub-section (1) of
Section 10 has been neutralized by not taking recourse to sub-
sections (2) and (3) of Section 10. In that sense, the officials
have collectively failed to protect institutional interest of the
State. Resultantly, the casual approach of Government servants
continue and on top of it, the judgments of the Supreme Court
are cited to argue as if the Government Servants have license
to sit over the files and to expect the Courts to take liberal
view.

¶107

21]As stated earlier, to expect from the Court a liberal
approach, the officers, like the applicants, are/were duty bound
to show that despite due diligence and bona fide efforts, the
appeal could not be filed within stipulated time because of
certain administrative exigencies, which were beyond their
control. The Government Officials are under a special
obligation to ensure that they perform their duties with due
diligence and commitment.

¶108

15A-SA-355-2009.odt 18

¶109

22]The application as also the affidavit filed by the
applicants before the First Appellate Court is completely silent
as to what prevented the applicants to adhere to rigor of
Section 10 of the Act of 2005. In fact, the reasons assigned to
condone the delay does not show any cause, much less
sufficient cause, to condone the delay. This is not a case where
certain leeway could be provided to the applicants. The
judgment of Sheo Raj Singh (supra) is, therefore, of no help to
the applicants.

¶110

23]Put all together, the applicants failed to show that
the trial Court has arrived at a perverse finding on fact to the
effect that no sufficient cause has been shown by the
appellants. The finding appears to be in tune with Section 5 of
the Limitation Act, 1963 read with the judgment cited above as
also the provisions of the Act of 2005. The second substantial
question of law is answered in the negative. Resultantly, the
appellants failed to make out a case. The Second Appeal is
accordingly dismissed.

¶111

15A-SA-355-2009.odt 19

¶112

24]Copy of judgment be served upon the Chief
Secretary, Government of Maharashtra with a hope of taking
action in terms of sub-sections (2) and (3) of Section 10 of the
Act of 2005, of course, after giving an opportunity of hearing to
the officials concerned. The action be taken by 30/6/2024.
Reporting compliance of order will be highly appreciated.

¶113

JUDGE

¶114

Sumit

The State of Mah, Thr Collector,Gadchiroli and 2 Ors. v. Nawalkishore S/O Parasramaji Kabara

Case brief

What is this about?

What the court decided

The State of Mah, Thr Collector,Gadchiroli and 2 Ors. v. Nawalkishore S/O Parasramaji Kabara

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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Case details

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