2022 (2) TMI 1265 - HC - Indian Laws

Condonation of delay of 132 days caused in preferring the regular civil appeal - sufficient cause shown for delay or not - HELD THAT - It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay. The application for condonation of delay was not objected by the respondents herein and no reply/ written objections appear to have been filed against the delay condonation application. It is pertinent to note here that notice of this writ petition is also served upon the respondents and here also, the respondents have chosen not the appear before this Court - sufficient cause appears to have been shown by the petitioner for delay. As per the catena of decisions of the Apex Court, sufficient cause in Section 5 of the Limitation Act must receive a liberal construction so as to advance the substantial justice and generally, delay in preferring the appeals are required to be condoned in the interest of justice - Thus, the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. Another ground on which the learned first appellate Judge has rejected the application for condonation of delay is nonjoinder of necessary parties viz. original plaintiff Nos. 6 and 7, who happen to be the father and mother of original plaintiff namely deceased Sanjaybhai Popatbhai Mer - when the respondents have chosen not to resist the said application, with a view to fend off multiplicity of proceedings, such a curable technicality ought to have been avoided. Petition allowed.

Summary

Issues Involved:
1. Condonation of delay in filing an appeal.
2. Non-joinder of necessary parties.

Detailed Analysis:

1. Condonation of Delay in Filing an Appeal:

The petitioner, an electricity company, filed a petition under Article 227 of the Constitution of India against an order dated 31.08.2021 by the Principal District Judge, Amreli, which rejected their application for condonation of a 132-day delay in filing a regular civil appeal. The appeal was against a judgment and decree dated 01.05.2019 by the Principal Senior Civil Judge, Amreli, in Special Civil Suit No. 81 of 2014, which was partly allowed in favor of the respondents.

The petitioner argued that as a government-run electricity company, it had to follow due procedures for obtaining opinions and approvals from various departments, which caused the delay. The petitioner highlighted that the delay was only 132 days and that the application for condonation of delay was not objected to by the respondents as they did not file any reply or written objections.

The court noted the chronology of events, which showed that the petitioner took immediate steps after the judgment and decree were pronounced. The certified copy was applied for on 02.05.2019, received on 14.05.2019, and subsequently, the necessary approvals and opinions were sought from various departments, leading to the filing of the appeal on 27.09.2019.

The court emphasized that "sufficient cause" is the paramount consideration in a delay application and should generally be liberally construed to advance substantial justice. The court referred to various judgments of the Apex Court, which supported a liberal construction of "sufficient cause" to avoid miscarriage of justice, especially when no negligence, inaction, or mala fides can be imputed to the petitioner.

The court concluded that the petitioner had shown sufficient cause for the delay and that the delay should be condoned in the interest of justice. The court set aside the impugned order and condoned the delay of 132 days.

2. Non-joinder of Necessary Parties:

Another ground for rejecting the application for condonation of delay was the non-joinder of necessary parties, specifically original plaintiff Nos. 6 and 7. The petitioner argued that the suit was filed through the legal heirs of the deceased Sanjaybhai Popatbhai Mer, including plaintiff Nos. 6 and 7, who were his parents. The court noted that the respondents did not object to the application for condonation of delay and that such a curable technicality should have been avoided to prevent multiplicity of proceedings.

The court determined that the non-joinder of necessary parties was a technicality that should not have been a ground for rejecting the application, especially when the respondents chose not to resist the application.

Conclusion:

The court allowed the writ petition, set aside the impugned order dated 31.08.2021, and condoned the delay of 132 days in filing the regular civil appeal. The court emphasized that sufficient cause was shown for the delay and that the matter merited favorable consideration. The rule was made absolute, and no order as to costs was made in the facts and circumstances of the case.