Dismissed

Union of India v. Dhapu Kanwar

Rajasthan HC7 Apr 2022CMA/938/2021

Case brief

AI extract

What is this about?

The High Court dismissed an application for condonation of delay under Section 5 of the Limitation Act. The Union of India sought to remedy a 669-day delay in filing a civil miscellaneous appeal against a Motor Accident Claims Tribunal award. Citing Supreme Court precedent regarding indifference by state authorities and the lack of cogent reasons, the Court refused to condone the delay and dismiss

What did the court decide?

Application under Section 5 of the Limitation Act dismissed; Civil Misc. Appeal dismissed.

Union of India Vs Dhapu Kanwar — Civil Procedure and Limitation | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Misc. Appeal No. 3675/2019

¶3

Dhapu Kanwar W/o Late Bheru Singh, Aged About 22 Years, R/o Village Habur, Tehsil And District Jaisalmer.

¶4

Ashok Singh S/o Late Bheru Singh, Aged About 3 Years, Minor Through Natural Guardian Mother Smt. Dhapu Kanwar W/o Late Bheru Singh. R/o Village Habur, Tehsil And District Jaisalmer.

¶5

Nirma D/o Late Bheru Singh, Aged About 1 Years, Minor Through Natural Guardian Mother Smt. Dhapu Kanwar W/ o Late Bheru Singh. R/o Village Habur, Tehsil And District Jaisalmer.

¶6

Smt. Kanwaro Kanwar W/o Late Sh. Tulas Singh, Aged About 52 Years, R/o Village Habur, Tehsil And District Jaisalmer.

¶7

----Appellants

¶8

Versus

¶9

Union Of India, Through Defense Secretary, South Block Ministry Of Defense, New Delhi (India) (Vehicle Owner - Vehicle No. 15D-198293E, Als)

¶10

Narayan Awasthi S/o Sh. Ashok Kumar, B/c Awasthi Brahmin R/o Darapura, P.s. Campil, District Farukabad (U.p.) At Present Constable No. 14867029 Mb Company 512 Asc Bns C/o 56 Apo (Driver Vehicle No. 15D198293E, Als)

¶11

512 Mb Company, Asc Bnc Commanding Officer, C/o 56 Apo Pin 905512 (Army Vehicle No. 15D-198293E, Als)

¶12

----Respondents

¶13

Connected With

¶14

S.B. Civil Misc. Appeal No. 938/2021

¶15

Union Of India, Defense Secretary, Ministry Of Defence , New Delhi

¶16

512 Mb Company, Asc Bnc Through Commanding Officer C/o 56 A.p.o. Pin 905512

¶17

----Appellants

¶18

Versus

¶19

Dhapu Kanwar W/o Bheru Singh, Aged About 26 Years,

¶20

(2 of 6)

¶21

[CMA-3675/2019]

¶22

Village Habur (Poonam Nagar), Tehsil And District Jaisalmer

¶23

Ashok Singh S/o Bheru Singh, Village Habur (Poonam Nagar), Tehsil And District Jaisalmer

¶24

Nirma D/o Bheru Singh, Village Habur (Poonam Nagar), Tehsil And District Jaisalmer

¶25

Kanwaro Kanwar W/o Tulas Singh, Village Habur (Poonam Nagar), Tehsil And District Jaisalmer

¶26

Narayan Awasthi S/o Ashok Kumar, Darapura, P.s. Kampil, District Farrukhabad (Uttar Pradesh) At Present Constable No. 14867029 Mb Company 512, A.s.c. Bnc B/o A.p.o.

¶27

----Respondents

¶28

For their respective : Mr. Girdhar Singh Bhati parties Mr. Mukesh Rajpurohit, ASG

¶29

HON'BLE MR. JUSTICE MADAN GOPAL VYAS Judgment / Order

¶30

Reserved on 06/04/2022

¶31

Pronounced on 07/04 / 2022

¶32

SBCMA No.3675/2019 :

¶33

The present appeal has been preferred by the appellantsclaimants against the judgment and award dated 11.9.2019 passed by the learned Judge, Motor Acident Claims Tribunal, Jaisalmer in MAC Case No.129/2017 seeking enhancement of the award amount.

¶34

Heard learned counsel for the parties.

¶35

Admit. Issue notice. Mr. Mukesh Rajpurohit, learned ASG accepts notice on behalf of the respondent no.1- Union of India.

¶36

Let notices be issued to the respondents no.2 and 3, returnable within six weeks.

¶37

Call for the record.

¶38

SBCMA No.938/2021 :

¶39

(3 of 6)

¶40

[CMA-3675/2019]

¶41

The present civil misc. appeal has been preferred by the applicant-appellant-Union of India through Defense Secretary, Ministry of Defence, New Delhi after delay of 669 days. Alongwith the civil misc. appeal, the applicant-appellant has also preferred an application under Section 5 of the Limitation Act for condonation of delay.

¶42

Mr. Mukesh Rajpurohit, learned ASG appearing for the applicant-Union of India submitted that the impugned judgment was passed on 11.9.2019 and certified copy of the judgment and award was received on 22.10.2019. Learned ASG made reference of certain inter-departmental correspondences right from the year 2019 to 2021 in order to show and suggest that the Union of India was very much keen to prefer the Misc. appeal against the judgment and award and ultimately, it was decided to file not only the appeal but also the application under Section 5 of the Limitation Act and on 21.10.2021, the civil misc application was filed and the application under Section 5 of the Limitation Act was preferred on 4.2.2022.

¶43

Learned ASG appearing for the applicant reiterating the submissions made in the application explained the delay in filing misc. appeal and prayed that the delay may be condoned and consequently, while allowing the application under Section 5 of the Limitation Act, the civil misc. appeal may be heard on its merits.

¶44

Learned counsel appearing for the claimants appearing in the connected appeal (respondents nos.1 to 4 herein) vehemently opposed the prayer made by the learned counsel for the applicant and submits that there is delay of 669 days.

¶45

(4 of 6)

¶46

[CMA-3675/2019]

¶47

Heard learned counsel for the parties.

¶48

Having heard learned counsel for the parties and after perusing the record, this Court is not inclined to condone the long delay of 669 days in filing the misc. appeal because in two recent judicial pronouncement Hon'ble Supreme Court has deprecated the practice of the delay on the part of the state authority in filing appeal after long delay as a result of indifference and indolent attitude on the part of the state authorities in dealing with files in their offices.

¶49

In the case of State of Madhya Pradesh & Ors. V. Bherulal, 2020 SCC Online SC 849 , it was found that the appeal filed by the State was with delay of 663 days. The cause shown for inordinate delay in that case was due to unavailability of documents and the process of arranging documents and also a reference to bureaucratic process works. In the aforesaid factual context, Their Lordships of the Supreme Court, referring to its earlier decision, observed as below-

¶50

“3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

¶51

“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.

¶52

(5 of 6)

¶53

[CMA-3675/2019]

¶54

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

¶55

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

¶56

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.”

¶57

In another decision, in the case of Government of Maharashtra (Water Resources Department) V. M/s. Borse Brothers Engineers and Contractors Pvt. Ltd., 2021 SCC Online SC 233 also, in the factual context of long delay of 75 days, the explanation was found to be short of any sufficient cause. The explanation in the aforesaid case was noted in para 65 of the said judgment as below -

¶58

“65. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court’s judgment was obtained by the respondent on 27.04.2019, the appeal was filed only on 09.09.2019, the explanation for delay being:

¶59

“2. That, the certified copy of the order dated 01/04/2013 was received by the appellant on 27/04/2019. Thereafter the matter was placed before the CGM purchase MPPKVVCL for the

¶60

(6 of 6)

¶61

[CMA-3675/2019]

¶62

compliance of the order. The same was then sent to the law officer, MPPKVVCL for opinion.

¶63

That after taking opinion for appeal, and approval of the concerned authorities, the officerin- charge was appointed vide order dated 23/07/2019.

¶64

That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed to pursuant to the same and further delay.

¶65

That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy department of the State Government, the delay caused in filing the appeal is bonafide and which deserve[s] to be condoned.”

¶66

However, the Hon'ble Supreme Court was not satisfied with

¶67

the cause shown on the above lines and it was held as below :

¶68

“66. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also.”

¶69

Having regard to the fact that there is no proper explanation offered by the applicant-appellant for the delay of 669 days in filing the appeal, except mentioning of various dates, I am of the considered opinion that the applicant-appellant has miserably failed to give any acceptable, cogent and sufficient reasons to condone the delay of 669 days.

¶70

Accordingly, the application under Section 5 of the Limitation Act is hereby dismissed. Consequently, the Civil Misc. Appeal is also dismissed.

¶71

(MADAN GOPAL VYAS),J

¶72

CPGoyal/-

Union of India v. Dhapu Kanwar

Case brief

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Union of India v. Dhapu Kanwar

Case brief

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