Dismissed

M.Hassankannu, v. the Secretary, Poovar Grama Panchayat

Kerala HC4 Jul 2022WA/781/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ appeal against an order by the Writ Court regarding unauthorized constructions. The Court rejected the appellant's application for condonation of a 1105-day delay, finding the explanation of previous counsel's negligence and illness as an insufficient cause under the Limitation Act principles.

What did the court decide?

C.M. Application No. 1 of 2022 and the Writ Appeal were dismissed.

M.Hassankannu, Vs the Secretary, Poovar Grama Panchayat — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 4^TH DAY OF JULY 2022 / 13TH ASHADHA, 1944

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WA NO. 781 OF 2022

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APPELLANT/PETITIONER:

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M.HASSANKANNU, AGED 69 YEARS S/O.ABDUL KAREEM, BAITHUL BAKRA, PP IV/482, POOVAR, AT PRESENT RESIDING AT PLOT NO.15, INDIRA NAGAR, PEROORKKADA, THIRUVANANTHAPURAM.

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BY ADVS. AYPE JOSEPH S.R.AJITH MERIN ROSE

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RESPONDENTS/RESPONDENTS:

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1 THE SECRETARY, POOVAR GRAMA PANCHAYAT, POOVAR, THIRUVANANTHAPURAM-695 525.

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2 MANJU.P.K., KAMALA BHAVAN, POOVAR, POOVAR P.O., THIRUVANANTHAPURAM-695 525.

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R1 BY SRI. M.R.SASITH, SC FOR R1

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 781/2022

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: 2 :

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

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--------------------------------------------------------C.M. Appln. No. 1 of 2022 & W.A. No. 781 of 2022

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Dated this the 4^th day of July, 2022.

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JUDGMENT

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S. MANIKUMAR,CJ.

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Before the writ court, Ext. P6 order dated 18.01.2010 in Appeal No. 930 of 2009 passed by the Local Self Government Institutions, Thiruvananthapuram is under challenge.

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After considering the rival submissions, vide judgment dated

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25^th May, 2017 in W.P.(C) No. 19411 of 2010, writ court ordered thus:

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“2. The appeal was filed as against the Secretary of the Poovar Grama Panchayat. The petitioner raised a complaint that the second respondent have erected unauthorised constructions. A stop memo was issued by the Secretary of the Grama Panchayat. The second respondent preferred an appeal before the Tribunal. The Tribunal directed the Panchayat to take fresh steps. Thereafter, the Panchayat passed an order stating that the constructions were completed, before the Building Rules relating to the Panchayat came into force and, therefore, the constructions cannot be interfered with. Aggrieved by the said order, the petitioner preferred an appeal before the Tribunal as per Ext.P5. In the light of the fact that constructions were completed prior to the Building Rules came into force, the Tribunal did not interfere with the order passed by the Panchayat. Ext.P6 is the said order, which is impugned herein. I also do not find any scope for interference with the order passed by the Tribunal as there was no error in concluding that the constructions were not in violation of the Building Rules. Accordingly, the writ petition is dismissed. No

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costs.”

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Being aggrieved, instant appeal is filed along with C.M. Application No. 1 of 2022 to condone the delay of 1105 days in filing the appeal.

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Reasons assigned in the affidavit filed in support of the petition are as hereunder:

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“2. The above Writ Appeal is filed against the Judgment in W.P.(C)No. 19411/2010, dated 25.05.2017. I had entrusted Adv. B. Sathiq to file the Writ Petition. He had informed me that the case was pending before this Honble Court. Since I was not well, I could not meet him in person and get the details of the case. Thereafter, when I met him in person, he informed me that I had to entrust the case with any other Lawyer. He relinquished his vakalath on November, 2021. As such, I engaged the present Lawyer. He filed the vakalath and thereafter on enquiry it was revealed that the Writ Petition was dismissed as early as 25.05.2017. This fact was not informed me by my earlier Lawyer. My present Lawyer filed a copy application of the Judgment on 14. 12.2021, Stamp was called on 15.12.2021 and the copy of the judgment was served to my Counsel on 15.12.2021.

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Though, the lawyer informed me on the receipt of the Judgment, I couldn't meet him at Ernakulam at his office since I was laid up. I am a heart patient and undergoing prolonged

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treatment for the same. I am filing the above Writ Appeal with this Petition to condone the delay of 1105 days. As the Hon'ble Apex Court observed regarding the period of limitation due to COVID-19 Pandemic from 15.03.2020 to 28.02.2022, the same period is not calculated for the delay in this case. And also, 30 days for filing the Writ Appeal is also excluded. As such there is a delay of 1105 days. I am prepared to produce medical certificate proving my ailment. I am filing a separate petition seeking to condone the delay. Unless the delay is condoned, I will be put to irreparable injury and loss.”

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Going through the above, we find that the appellant has contended that the disposal of the case was informed by his counsel after a considerable time and steps were taken to obtain a copy of the judgment and thereafter, the appeal filed with delay.

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We are of the view that the appellant must have been more diligent in prosecuting the case. Reference can be made to a few decisions on the aspect of delay.

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(i) In P.K. Ramachandran v. State of Kerala and Anr. [AIR 1998 SC 2276], the Hon'ble Supreme Court while considering a case of condonation of delay, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under:-

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"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the

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period of limitation on equitable grounds."

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(ii) In State (NCT of Delhi) v. Ahmed Jaan reported in (2008) 14 SCC 582, the Hon'ble Supreme Court held as under:

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“7. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy [2008 (228) ELT 162 (SC)], it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

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What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra [1976] 2 SCR 266, this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram [ILR (1918) 45 Cal 94 (PC)], it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari [1969] 1 SCR 1006, a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

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In Concord of India Insurance Co. Ltd. v. Nirmala Devi [1979]118 ITR 507(SC) which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his

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remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan [1969 (2) SCC 770], this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

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In State of Kerala v. E. K. Kuriyipe [1981 Supp SCC 72], it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath (1982) 3 SCC 366, it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.

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In O.P. Kathpalia v. Lakhmir Singh [AIR 1984 SC 1744], a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji (1987) ILLJ 500 SC, a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted

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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. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned.”

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(iii) In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai

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[(2012) 5 SCC 157], the Hon'ble Supreme Court, observed as under:

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"What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

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What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."

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(iv) In Basawaraj and Ors. v. The Spl. Land Acquisition Officer [(2013) 14 SCC 81], the Hon'ble Supreme Court held as under:

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"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."

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(v) In Esha Bhattacharjee v. Raghunathpur Nafar Academy , [(2013) 12 SCC 649], the Hon'ble Supreme Court has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case, hereunder:

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

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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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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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iii) Substantial justice being paramount and pivotal the

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technical considerations should not be given undue and uncalled for emphasis.

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

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

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To the aforesaid principles, we may add some more guidelines taking note of the present day scenario. They are: -

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a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

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c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

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d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

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(vi) In H. Dohil Constructions Co.(P). LTD. v. Nahar Exports Ltd. [(2015) 1 SCC 680], the Hon'ble Supreme Court has considered as to how the application filed to condone the delay has to be viewed and at paragraphs 19 to 21 and 24 held as under:

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“19. Having considered the respective submissions, on this question, we find that the submissions made on behalf of the appellant(s) are forceful. It is true that the delay in filing the appeals was only of 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into Registry. But when an enormous delay of nearly five years occurred in matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to

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enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.

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In the case on hand, the delay in refiling was on 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11.04.2008 as disclosed in Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 0609-2007 and the scrutiny charges were paid on 11-4-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September, 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bona fide in the respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of relief of specific performance. We also fail to see as to how Respondent 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any followup action to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dorminetibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents

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simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days'delay involved in filing the appeals.

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We express our total disinclination to countenance such a stand made on behalf of the respondents. In this respect, the claim of the appellant(s) that serious prejudice would be caused to the appellant(s) merits acceptance. In the rejoinder filed by the appellant(s) to the respondents' counter, the appellant(s) has explained as to how they had to spend a huge amount to upkeep the property by approaching the authorities of Delhi Municipal Corporation, the enormous amount spent to the tune of Rs.28,00,000/- by way of house tax from the year 2004 up to this date and various other improvements made in the property during the period wherein the delay in the matter of filing of the appeals and refiling was made by the respondents. Therefore, the principle that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance.

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When we apply those principles of Bhattacharjee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the nonfurnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06-09-2007, the reasons which prevented the respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a

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stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the Court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five yeas was involved in getting its appeals registered. "

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We are not satisfied with the reasons assigned in the afÏdavit

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filed in support of the petition to condone the huge delay of 1105 days, even without adding the period of Covid-19 pandemic. Accordingly, C.M. Application No. 1 of 2022 is dismissed, and consequently, the appeal is also dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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M.Hassankannu, v. the Secretary, Poovar Grama Panchayat

Case brief

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M.Hassankannu, v. the Secretary, Poovar Grama Panchayat

Case brief

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