Joint Commissioner, Hindu Religious and Charitable Endowment Department Vs Ambasamudram Taluk, Am basamudram Vetta Thirukoil, Paniyalargal Sangam and Others

@JUDGMENTTAG-ORDER

D. Murugesan, J.@mdashThe revision petition questions the decretal order passed in LA. No. 113 of 2005 in O.S. No. 116 of 2004 dated 25.8.2005 on the file of the Additional District Munsif Court, Ambasamudram, dismissing the interlocutory application filed for condonation of the delay of 306 days in filing the application to set aside the exparte decree.

2. Following are the few facts leading to the filing of the revision petition. The first respondent is Ambasamudram Vatta Thirukoil Paniyalargal Sangam. The said Sangam initially filed a suit before the Sub Court, Ambasamudram, which was numbered as O.S. No. 55 of 2001, praying for a judgment end decree of declaration declaring that the members of the Sangam are the Government servants and for a consequential relief of injunction restraining the revision petitioner from effecting publication to the effect that the members of the Sangam are the employees of the temple. The suit was transferred to the file of the Additional District Munsif in view of the change of jurisdiction of the Courts and was numbered as O.S. No. 116 of 2004. As the revision petitioner, the fourth defendant in the suit, did not appear in Court, an exparte order was passed on 9.8.2004, followed by an ex parte decree on 9.9.2004.

3. The revision petitioner filed LA. No. 113 of 2004 to set aside the ex parte order and decree. In the affidavit filed in support of the said application, the revision petitioner contended that after the suit was transferred from the file of the learned Sub Judge, Ambasamudram to the learned Additional District Munsif, Ambasamudram, the petitioner was not informed of the transfer and had no knowledge in time. Therefore, the revision petitioner did not appear before the learned Additional District Munsif on 9.8.2004. It was also averred that the staff of the petitioner did not inform in time about the ex parte order and decree, coupled with the further fact that the Joint Commissioner, H.R. & C.E. Department, Tirunelveli was entrusted with the charge of three districts and, therefore, could not follow the stags of the suit. It was also averred that the delay was not only due to the above reasons, but also on administrative grounds. The application was opposed by the first respondent on the ground that the ex parte decree , was informed to the petitioner vide their letter dated 9.12.2004, and hence the petitioner had the knowledge. Even thereafter, the petitioner did not file the application in time, as the same was filed only on 12.7.2005. To substantiate the above stand, the Secretary of the first respondent-Sangam also entered the box and had deposed. On consideration of the above, the learned Additional District Munsif, by the impugned order, has dismissed the application, as the delay was not properly explained. Hence, the revision petition.

4. I heard Mr. S. Meenakshi Sundaram the learned Counsel for the petitioner and Mr. T.S.R. Venkatram ana, the learned Counsel for the first respondent/caveator.

5. It is the condition precedent for exercise of the extraordinary jurisdiction vested, the Court must satisfy itself as to whether there was sufficient cause for exercising such discretion and condone the delay. Moreover, in an application for condonation of delay either by the Government or the public authority or the temple as in this case for that matter, consideration must be with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day''s delay. Useful reference can be made to the judgment of the Apex Court in State of Nagaland Vs. Lipok AO and Others, for the above proposition. His Lordship Justice Arijit Pasayat, speaking for the Bench, has elaborately discussed the scope and exercise of discretion in matters like this. The law laid down by the Apex Court on the issue is as follows:

The proof by sufficient cause is a condition precedent or exercise of the extraordinary restriction (sic 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 Vs. M. Krishnamurthy, , 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 that delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as 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.

What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, , 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 Inder Singh v. Kanshi Ram ILR (1918) 45 Cal. 94 : AIR 1917 PC 156 it was observed that true guide for a court to exercise the discretion u/s 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari and Others, , 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.

In Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, , which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan 1969 (2) SCC 840 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 fids 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 fides and it was tainted by any mala fide motive.

In State of Kerala v. E.K. Kuriyipe 1981 Supp. SCC 72, it was held that whether or not there is sufficiant cause for condonation of delay is a question of fact dependent 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.

In O.P. Kathpalia v. Lakhmir Singh 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, Anantnag and Another Vs. Mst. Katiji and Others, , a Bench of two Judges considered the question of 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 sub-serves 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 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 far according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned.

6. In yet another judgment, the Apex Court in Varadaraja Perumal Temple v. Pattabiraman and Anr. 2005 (10) SCC 292 while condoning the delay of 602 days in filing application to set aside the ex pane decree at the instance of Varadaraja Perumal Temple on the ground that the Court has to do substantial justice, particularly taking note of the fact that the appellant was a temple and one more opportunity shall be given to defend the case on merits.

7. On the facts and circumstances of this case, it has to be now considered as to whether the petitioner is entitled to succeed in the event the above law laid down by the Apex Court is applied. The first respondent is a Sangam and the suit is filed for a declaration that the members of the Sangam are the Government servants. To sustain the said plea, the Sangam had relied on Sections 12(1) and 55(1) of the (T.N.) Hindu Religious and Charitable Endowments Act. According to the Sangam, Section 12(1) of the Act contemplates that "other officers and servants including executive officers of religious institution employed for the purpose or the Act shall be servants of the Government". The Sangam had also relied on Section 55(1), which states that "office holders of servant shall include Archakars and Poojaris". The issue is of public importance, as it involves the right of the employees of the temple as a whole to claim themselves as Government servants or the servants of the temple as such. In the written statement, the petitioner has disputed the said claim on the ground that the servants are appointed by the trustees and not by the Government and, therefore, they should be considered only as the employees of the temple and not as Government servants. In my opinion, the above issue has to be adjudicated and decided only on merits.

8. Based on the above, the judgment of the Apex Court in State of Nagaland case (supra) must be applied. In that case, Their Lordships, while considering of 57 days, have held that the State is an impersonal machinery working through its officers and servants. Hence it cannot be put on the same footing as an individual. Their Lordships have also held that the public interest suffers if appeals by the State are lost because of such default, and the Court must decide the matters on merits unless the case is hopelessly without merit. Their Lordships also have emphasised that the Government decisions are taken by the officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intentional or otherwise - is a routine. What is relevant for consideration is sufficient cause and not the length of delay. When a question arises as to whether the Court should consider the application for condonation of delay on the basis of substantial justice or technical approach, the former must be preferred.

9. Mr. T.S.R. Venkatram ana, the learned counsel for the first respondent-Sangam had relied upon the following judgments of this Court:

(i) United India Insurance Co. Ltd., Cuddalore v. Minor Ummar and Anr. 1996 (2) LW 687(ii) The Special Tahsilder (LA.), Adi Dravidar Welfare, Vellore v. Kumarasamy Naidu 2000 (1) MLJ 382.

The above judgments are rendered by the High Court. In view of the recent law laid down by the Apex Court in State of Negaland case on the issue, in my opinion, the reliance placed on these judgments cannot be accepted.

10. For the above reasons, the delay is condoned and the revision petition is allowed. Of course, for the fault of the petitioner, the first respondent shall not be made to suffer financially. Hence, the petitioner shall pay a sum of Rs.2,000 towards costs to the first respondent directly before the trial commences. Consequently, C.M.P. (MD) No. 7553 of 2005 is closed.