Rajesh H. Shukla, J.@mdashThe present application has been filed under Sec. 5 of the Limitation Act, 1963 for condonation of delay of 51 days caused in filing the First Appeal on the grounds stated in the application, inter alia, that the local advocate had addressed the letter informing him about the dismissal of the suit and thereafter it was sent to the Dy. Executive Engineer who consulted the Executive Engineer and after consulting the advocate the appeal was preferred which consumed time resulting in delay of 51 days. Heard learned advocate Mr. H.S. Munshaw for the applicants-panchayat and learned advocate Mr. S.M. Shah for respondent No. 1-contractor as well as for respondents Nos. 2, 4 & 6.
2. Learned advocate Mr. Munshaw submitted that the panchayat is a local body which has to follow the procedure and it takes sometime in moving the files for administrative reasons. He submitted that the Hon''ble Apex Court has made observations with regard to adopting a liberal approach in such matters of condonation of delay particularly when it is a Government organisation or body. He has referred to and relied upon the judgments in the case of State (NCT of Delhi) v. Ahmed Jaan, reported in AIR 2009 SC (Supp) 695 as well as in the case of
When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. 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 public interest. 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. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit.
3. Learned advocate Mr. S.M. Shah for the respondents vehemently opposed the application for condonation of delay contending that the delay is required to be explained with sufficient cause and it may not be assumed. He submitted that at least some reasonable explanation must come forth which is not available in the present case. Learned advocate Mr. Shah submitted that in absence of any explanation or sufficient cause the delay may not be condoned. He submitted that the Limitation Act which is a statutory provision cannot be ignored and discretion may not be exercised contrary to the provisions of law.
4. In support of his submissions, learned advocate Mr. Shah has referred to and relied upon the judgment of the Full Bench of this Court in the case of
Delay must be explained and established Government departments and statutory bodies cannot claim for condonation of delay on grounds of administrative follow up delays.
Therefore, learned advocate Mr. Shah submitted that for application of law every litigant stands on the same footing and there cannot be any different criteria. He therefore submitted that the present application may not be entertained.
5. Learned advocate Mr. Shah has also referred to and relied upon the judgment of the Hon''ble Apex Court reported in
Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious...
6. He has also referred to and relied upon the judgment of the Hon''ble Apex Court reported in
7. Learned advocate Mr. Shah has referred to and relied upon the judgment of the Hon''ble Apex Court reported in (1981) 22 GLR 268 in the case of Ajit Singh Thakur Singh & Anr. v. State of Gujarat. He has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of
8. Lastly, learned advocate Mr. Shah submitted that even if this Court is inclined to exercise the discretion, the court is bound by the judicial precedents and as earlier the Full Bench of this court has made the observations, the same are binding and therefore there is no scope for exercise of such discretion. He further submitted that if a different view is to be taken, then, the matter requires to be referred to a larger bench, but a smaller Bench or court lower in the judicial hierarchy is bound by the judgments of the larger Bench or superior courts and therefore the present application may not be entertained. In support of his submission, he has referred to and relied upon the judgment in the case of Somabhai Mathurbhai Patel v. New Shorrock Mills, reported in 1983 GLH 273.
9. In view of rival submissions, it is required to be considered whether the present application can be entertained or not.
10. The Hon''ble Apex Court in catena of judicial pronouncements has laid down guidelines for adopting a pragmatic approach in matters of condonation of delay. The Hon''ble Apex Court in a judgment in the case of
The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit.....
11. Therefore, the submission of learned advocate Mr. Shah that the Government department or a statutory body cannot claim for condonation of delay on administrative follow up relying upon the Full Bench judgment of this court in the case of Ahmedabad Municipal Corporation (supra) has to be considered in light of the aforesaid observations of the Hon''ble Apex Court, which is also binding on this court. Further, there is no quarrel on the proposition that Sec. 5 of the Limitation Act r/w O. 22, R. 9 of CPC provides for exercise of discretion on sufficient cause being shown for condonation of delay. Therefore, sufficient cause is a matter of appreciation of facts and circumstances in each individual case and it cannot be defined in a strait-jacket formula. The words ''sufficient cause'' have to be considered in background of the facts of each case though it may not be a matter of right or a magic word for condonation of delay in a routine manner.
12. It is also required to be mentioned that even while considering the provisions of O. 22, R. 9 of CPC which provide for sufficient cause for delay in bringing the legal representatives on record and as rightly submitted the provisions of Sec. 5 of the Limitation Act as well as O. 22, R. 9 have to be construed. However, there is a fine distinction made by the Hon''ble Apex Court in the case of
An application u/s 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus expressly been excluded in a proceeding under Order XXI of the Code. In that view of the matter, even an application u/s 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court, cannot be invoked.
Again, referring to the observations made in an earlier judgment, it has been quoted.
Therefore having regard to the above language, it was permissible to have such a provision wherein the position is clearly changed at present. Section 5 of the present Limitation Act, 1963, states that any appeal or any application under any of the provisions of Order 21, Civil Procedure Code. 1908, may be admitted after the prescribed period if the appellant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The Explanation is omitted as unnecessary. Therefore, with reference to applications under Order 21. Civil Procedure Code, there is the statutory bar in applying section 5 of the Limitation Act. It may also be relevant to note section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian Limitation Act, 1908 is hereby repealed. Therefore, after 1st January, 1964, sub-rule (4) of Rule 105 of Order 21, Civil Procedure Code, could not longer be applied, because of the express language of section 5 of the Limitation Act. That is why the Central Code in Rule 106 of Order 21, Civil Procedure Code, did not make any reference to the same saying that section 5 of the Limitation Act would be applicable.
13. These observations have to be read in context of the facts and the background. In the facts of the present case, it is not an application for condonation of delay in bringing the heirs on record, but it is for condoning the delay in filing the First Appeal where sec. 5 of the Limitation Act would be applicable. Again, the Hon''ble Apex Court has, though made the observations in a subsequent judgment in the case of
the law of limitation is a substantive law has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case...
(Emphasis supplied)
14. A useful reference can also be made to the judgment of the Hon''ble Apex Court in the case of
...the courts are bestowed with the power to condone the delay, if sufficient cause is shown... The expression "sufficient cause" is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate...
In other words, a distinction has been made consciously bearing in mind that in case of such Government organization it has its own administrative limitations with regard to movement of files and necessary procedure as required under the rules of business or administration for necessary sanction which may consume time. It is in this background sufficient cause has to be considered and the Hon''ble Apex Court has clearly observed that for condonation of smaller period of delay some kind of liberal approach is necessary though for lethargic approach resulting in longer delay the court may be strict and the department or the Government organisation may have to explain sufficient cause for such delay.
15. A useful reference can also be made to the judgment of the Hon''ble Apex Court in the case of
The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. Delay should not be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.... It is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case.
In this judgment, what could be "sufficient cause" has also been referred with reference to the earlier judgment of the Hon''ble Apex Court in the case of
16. Further, this court is also conscious in taking note of the subsequent judgment of the Hon''ble Apex Court in the case of
Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.
17. Again, in this judgment, the Hon''ble Apex Court has expressed caution about the liberal approach or justice-oriented approach or substantial justice, but at the same time has clearly observed that the discretion or judicial power has to be exercised within reasonable bounds. In other words, the discretion is with the court which could be exercised as provided in the law including sec. 5 of the Limitation Act on sufficient cause being shown. Again, sufficient cause is a matter which will depend upon the facts and circumstances and perception in each matter and no rigid formula can be evolved. In fact, there has to be some kind of discretion left to the concerned court in order to provide justice and the matter being decided on merits rather than denying the opportunity at the threshold on such ground when there is a reasonable explanation. The fact that the Legislature has in its wisdom left it to the discretion of the court itself implies that it has to be applicable in a given set of facts and circumstances and can be considered on specific case basis rather than by a rigid formula.
18. Again, the period of limitation is provided and thereafter there is an express provision for condoning delay on sufficient cause being shown itself suggests that such discretion has to be exercised with care to advance the cause of justice. In other words, the submission made by learned advocate Mr. Shah that there is no discretion with the court and the substantial law of limitation has to be considered and made applicable suggesting that there is no discretion left with the court cannot be accepted. On the contrary, according to his own submission, the discretion is there and whether the explanation for delay can be termed as sufficient cause is a matter of appreciation of facts in an individual case and perception. Therefore, the submission that there is no discretion is misconceived. It is another matter that such discretion has to be exercised with caution and there is no unbridled power or discretion left to the court. It is at this stage the aspect of sufficient cause will come into play when the court will scrutinize and examine whether the explanation can be termed as "sufficient cause" or not depending upon the facts and circumstances in each case.
19. Another facet of the submission that in view of the Full Bench judgment of this court in the case of
20. The Hon''ble Apex Court in its judgment in the case of Somabhai Mathurbhai Patel (supra) has clearly made the observation that all the observations made by the higher court are not a precedent and they are precedent to the extent of the law laid down therein. In the facts of the present case, referring to different judgments of the Hon''ble Apex Court the guidelines or broad proposition has to be culled out as to what should be the approach. As discussed above, the Hon''ble Apex Court itself has made it clear that the administrative departments of the Government may have their own limitations and therefore some kind of liberal interpretation is required. Again, it is clarified that for a smaller period of delay it may have such approach but if there is longer period of delay then the court may have a strict approach while considering sufficient cause. The Hon''ble Apex Court, as discussed above, has again clearly laid down that sufficient cause has to be considered in a given set of facts and circumstances and therefore the broad proposition of law with regard to the approach are required to be followed, but it cannot be said as a proposition of law as canvassed by learned advocate Mr. Shah that in light of the observations of the Hon''ble Apex Court there is no discretion left with the court when the statute itself provides such discretion on sufficient cause being shown. The reference to the observations of the Hon''ble Apex Court in the case of Somabhai Mathurbhai Patel (supra) with regard to precedent is out of context inasmuch as it refers to a binding effect of a judgment to a co-ordinate bench, whereas in the facts of the present case, a Full Bench judgment of the same High Court is binding on the single Judge (this court) for which there cannot be any doubt. At the same time, different judgments of the Hon''ble Apex Court would equally be binding and therefore considering the broad guidelines and the provisions of substantial law like sec. 5 of the Limitation Act, the application has to be decided in a given set of facts.
21. It is in these circumstances the court is of the opinion that the present application deserves to be allowed as sufficient cause can be said to have been made out for condonation of the delay. Accordingly, the present civil application stands allowed. The delay of 51 days caused in filing the First Appeal is condoned. Rule is made absolute.
