Allowed

Municipal Board Mt.Abu and Anr. v. M/S Hotel Hillock Pvt.Ltd.

Rajasthan HC10 Jan 2024CR/276/2008

Case brief

AI extract

What is this about?

High Court allowed a civil revision petition against an order rejecting a Section 5 application filed by a government local authority. The Court held that the 33-day delay in filing the appeal was condonable given the nature of the appellant and directed the lower court to hear the appeal on merits.

What did the court decide?

The delay of 33 days is condoned. The impugned order dated 30.07.2008 is quashed. The first appellate Court is directed to decide the appeal on merits.

Municipal Board Mt.Abu and Anr. Vs M/S Hotel Hillock… — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 276/2008

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Municipal Board Mt.abu And Anr.

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----Petitioners

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Versus

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M/s Hotel Hillock Pvt. Ltd.

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----Respondent

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For Petitioner(s)	: Mr. Yashwant Mehta
For Respondent(s)	: Nonepresent

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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10/01/2024

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In the present revision petition, which pertains to the year 2008 and falls under the category of “Oldest hearing cases for early disposal”, none appeared for the respondent on 28.03.2022, 22.08.2023 and 28.08.2023 whenever the matter was listed before the Court. However, in the interest of justice, the matter was directed to be listed on 29.08.2023, on which date, learned counsel Mr. Hemant Shrimali put in appearance on behalf of respondent and submitted that he would be filing power (P/A) during the course of the day. He then, prayed for time to argue out the petition and on his request, the matter was directed to be listed on 14.09.2023.

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As the matter could not be taken up on 14.09.2023, it was listed on 18.10.2023, on which date, learned counsel Mr. Hemant Shrimali submitted that he has filed power (P/A) on behalf of respondent but prayed for adjournment. On his request, the matter was directed to be listed on 22.11.2023. The matter was then listed on 03.01.2024, on which date a request for

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adjournment was made on behalf of learned counsel Mr. Hemant Shrimali on the ground of bereavement in his family. On the said request been made, the matter was directed to be listed today i.e. on 10.01.2024. Today, none has appeared on behalf of the respondent.

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In view of the fact that sufficient time has been granted to the respondent and none has appeared despite the said opportunities been granted, the Court proceeded on to hear learned counsel for the petitioner finally on the revision petition. 4. The present revision petition has been preferred against the order dated 30.07.2008 passed by the Additional District Judge, Abu Road in Civil Appeal (decree) No.30/2007 whereby the application under Section 5 of the Limitation Act as preferred by the petitioner/appellant was rejected and as a consequence, the regular first appeal also stood dismissed.

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The brief facts of the case are that a suit for permanent injunction was preferred by the plaintiff-respondent against the defendant-Municipal Board which was decreed vide judgment and decree dated 08.05.2007. An appeal against the said judgment and decree was preferred by the Municipal Board which was filed with a delay of approximately 35 days. An application under Section 5 of the Limitation Act was preferred for condonation of the said delay. However, the said application was rejected on the ground that no plausible reason/dates as to when the officer-incharge was on leave; when the sanction to prefer the appeal was granted; when the application for the said purpose was moved etc. had been furnished. It has further been observed by the Court that it was not mentioned in the application as to from

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whom the sanction was to be obtained when the Commissioner himself was competent to grant the sanction. The Court further observed that when stipulated limitation for filing the appeal expired in the month of June, that is, during the summer vacations, the appeal ought to have been filed on the re-opening day i.e. on 02.07.2007. However, the same was filed on 18.07.2007 and no reason for the delay for the period of said 16 days i.e. from 02.07.2007 to 17.07.2007 has also been given. Learned Court below further observed that the reason for day to day delay ought to have been given by the appellant-Department and the same having not been given, the delay is not liable to be condoned.

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Heard the counsel and perused the material available on record.

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The case of the appellants before the first appellate Court was that the plaintiff Hotel encroached on 20x30 sq.ft. area of land of the Municipality in the garb of a permission for renovation and hence, the decree for injunction granted in its favour deserves to be set aside.

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As per the application filed by the appellant, the judgment & decree in question was passed on 08.05.2007 and copy of the same was received by the counsel on 15.05.2007. Meaning thereby, the limitation to prefer an appeal against the same was available till 15.06.2007. However, there being summer vacations in the month of June, the appeal ought to have been filed on 02.07.2007, that is, the re-opening day. However, the appeal was filed on 18.07.2007 and hence, there was a delay of 33 days. An application under Section 5 of the Limitation Act was hence filed

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for condonation of the said delay. The reason assigned in the application was that the officer-in-charge/the Commissioner was on leave/official tour during the relevant point of time and hence, the sanction to prefer an appeal could not be obtained in time.

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Admittedly, the petitioner is a government agency being a local authority. As held by the Hon’ble Apex Court in the case of State of Nagaland vs. Lipok AO and Ors.; (2005) 3 SCC 752,

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the decisions taken by the government officers/agencies are comparatively at a slow pace and considerable delay of procedural red-tape in the process of their decision making is a common feature but if the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is the ‘public interest’. The Hon’ble Apex Court further observed that the expression “sufficient cause” should therefore be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay.

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In Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107, the Hon’ble Apex Court observed that “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. The ratio as laid down in Mst. Katiji (supra) has been reiterated by the Hon’ble Apex Court in the recent judgment of

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Raheem Shah & Anr. vs. Govind Singh and Ors.; Civil Appeal

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No.4628 of 2023 , decided on 24.07.2023, wherein the Court observed as under:

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“The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation

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Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits’. The expression sufficient cause’ employed by the legislature is adequately elastic to enable the courts 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. And such a liberal approach is adopted on principle as it is realized that:

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1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.

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4. When substantial justice and technical considerations are pitted 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.

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5. 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.

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6. It must be grasped that judiciary is respected not on account of its power to legalize 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.”

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Dealing specifically with the matters wherein the delays are

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on part of the government agencies, in the case of Sheo Raj Singh (Deceased) through LRs. & Ors. Vs. Union of India &

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Anr.; Civil Appeal No.5867 of 2015 decided on 09.10.2023, the

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Hon’ble Apex Court held as under:

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“ 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.”

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Testing on the touchstone of the ratio as laid down by the Hon’ble Apex Court in the abovementioned judgments, this Court is of the clear opinion that the delay of 33 days in the present matter cannot be held to be so inordinate so as to completely nonsuit the petitioner. As held by the Hon’ble Apex Court, a liberal and justice-oriented approach with a certain leeway should be adopted in the matters of State. Keeping into consideration the delay of 33 days which is not so huge or inordinate and the fact that the reasons as assigned by the petitioner are plausible enough to make out a “sufficient cause”, this Court is of the firm view that the delay ought to have been condoned by the first appellate Court and the appeal ought to have been heard on merits.

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In view of the above observations, the present revision petition is allowed . The delay of 33 days caused in filing the first appeal is hereby condoned. The order impugned dated 30.07.2008 is quashed and set aside. The learned first appellate Court is

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directed to decide the appeal on merits after affording opportunity of hearing to all the parties.

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