Dismissed

State of Hp and Ors. v. Babu Ram and Ors.

Himachal Pradesh HC29 Nov 2023CMP.M/1572/2023

Case brief

AI extract

What is this about?

The High Court dismissed an application seeking condonation of a 316-day delay in filing a Letters Patent Appeal by the State of HP. The Court held that the State failed to explain the inordinate lapse and distinguished precedents allowing broader latitude to government entities. Consequently, both the condonation application and the underlying appeal were dismissed.

What did the court decide?

The application for condonation of delay is dismissed; the Letters Patent Appeal is also dismissed.

State of Hp and Ors. Vs Babu Ram and… — Civil Procedure and Limitation | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP(M) No.1572 of 2023 Decided on: 29^th November, 2023

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______________________________________________________ State of HP and others …..Applicants Versus Babu Ram and Ors. …Respondents ______________________________________________________ Coram_

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The Hon’ble Mr. Justice M. S. Ramachandra Rao, Chief Justice The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

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Whether approved for reporting?

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____________________ For the applicants:	_________________________________ Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocates General and
	Mr. Arsh Rattan & Mr. Sidharth Jalta,
	Deputy Advocates General.
For the respondents:	None.

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M.S.Ramachandra Rao, Chief Justice (Oral)

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This application is filed by the applicants-appellants seeking condonation of delay of 316 days in filing the Letters Patent Appeal, challenging the order dt. 25.08.2022 in CWPOA No. 513 of 2019.

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In the application seeking condonation of delay, the applicants/appellants have stated that the attested copy of the

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judgment was delivered to the office of learned Advocate General on 18.10.2022 and in the meantime on 01.10.2022, matter was taken up

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with the Law Department through Administrative Department, seeking opinion in the matter. It is stated that the Administrative Department on 31.01.2023, conveyed the opinion as tendered by the

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Law Department to the appellants not to challenge the judgment of the learned Single Judge, but in view of financial implications, which were made known on 12.04.2023, opinion of the learned Advocate General was sought on 17.06.2023 and on the basis of said opinion tendered on 25.07.2023, the appeal came to be filed on 06.09.2023 with the delay of 316 days.

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Learned Additional Advocate General appearing for the

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State contended that the delay occurred for the aforesaid reasons and was not intentional and there was no negligence in pursuing the matter.

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Admittedly, the judgment of the learned Single Judge

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was pronounced on 25.08.2022 in the presence of learned Additional Advocate General.

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There is no explanation as to what happened between 01.10.2022 and 31.01.2023, and why it took three months for the

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Law Department to give legal opinion.

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It is also not explained as to why it took further period of

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three months to re-consider the view of the matter of the Law Department not to file the appeal; and even though the financial implications were known by 12.04.2023, why the appeal was not preferred till 06.09.2023.

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In Postmaster General and others Versus Living Media

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India Limited and anothe r¹ the Hon’ble Supreme Court had observed as under:-

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“25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months.

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26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the

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1 (2012) SCC 563

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person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

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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.

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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 bonafide, 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

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available. The law of limitation undoubtedly binds everybody including the Government.

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1. The said judgment has been followed by the Supreme

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Court in several cases such as Commissioner of Customs Chennai vs. M/s Volex Interconnect (India) Pvt. Ltd.² ; Pr. Commissioner Central

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Excise Delhi-1 vs. Design Dialogues India Pvt. Ltd.³ ; Union of India vs. Central Tibetan Schools Administration & others⁴ ; Union of India & others vs . Vishnu Aroma Pouching Private Limited and

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another⁵ ; and State of Uttar Pradesh & others vs. Sabha Narain &

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others⁶ .

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Learned Additional Advocate General has relied upon the judgment of Hon’ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Ragunathpur Nafar Academy and others⁷ . In the said judgment in para-21, following principles have been culled out for application to situations where condonation of delay is sought in filing the appeals: -

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“21. From the aforesaid authorities the principles that can broadly be culled out are:

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2 (2022) 3 SCC 159

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3 (2022) 2 SCC 327

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4 (2021) 11 SCC 557

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5 (2022) 9 SCC 263

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6 (2022) 9 SCC 266 7

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(2013) 12 SCC 649

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21.1(i) There should be a liberal, pragmatic, justice-oriented, nonpedantic 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.

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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.

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21.3(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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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.

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21.5(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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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.

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21.7(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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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.

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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

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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.

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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.

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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.

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21.12(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.

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21.13(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

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We may point out that the said judgment did not consider

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the judgment in Post Master General ( 1 supra), cited supra and the aspect of delay on part of the State in challenging with considerable delay, the orders passed by learned Single Judge in LPAs.

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In fact, in that case , it was a private dispute between the parties and the issue was with regard to challenge of an interim order passed by learned Single Judge made after delay of 2449 days before a Division Bench, which delay appears to have been condoned by the Division Bench.

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1. The Supreme Court in Esha Bhatta charjee ( 7 supra) set-

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aside the order of the Division Bench condoning the said inordinate delay by holding that such period cannot be condoned and had given the finding that the respondent had exhibited gross negligence and also recklessness and had not availed legal remedy promptly.

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We may also note about the caution contained in the said judgment about the increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity is exhibited in a nonchalant manner and this requires to be curbed within the legal parameters.

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The Additional Advocate General also placed reliance on the decision of the Supreme Court of India in State of Manipur and

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others v. Koting Lamking⁸ .

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In that case the State had filed an appeal on 15.6.2017 against a judgment and decree dt.18.7.2016 of a trial court in a civil suit wrongly before the District Judge, Imphal who did not have the pecuniary jurisdiction to entertain the said appeal. He dismissed the said appeal on the ground of lack of pecuniary jurisdiction on 28.7.2017. Thereafter the RFA was filed before the High Court with an application to condone the delay of 312 days in filing the appeal.

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8 (2019) 10 SCC 408

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The High dismissed the said RFA , but on appeal, the Supreme Court reversed the judgment of the High Court. In that context the Supreme Court held that there would be bureaucratic delays and also slow pace in reaching a government decision. It also referred to the impersonal nature of the government’s functioning where individual officers may fail to act responsibly.

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Unlike in the said case where, by mistake, a wrong forum

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was approached by the appellants-State, the situation in the instant case is entirely different.

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Also the attention of the Court in the above decision

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was not drawn to the decision in Post Master General ( 1 supra) where it had taken a different view of the Governmental delays in filing appeals set out by us above.

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We are satisfied that in view of the ratio of the decision of Post Master General ( 1 supra) and the other cases where the ratio laid down therein has been followed as mentioned above, and in the facts and circumstances of this case set out above, sufficient case has

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not been shown by the applicants to condone the inordinate period of delay of in filing this appeal.

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