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TMI Blog1994 (5) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... through the earlier orders passed by the Bench of C.V. Jani and R.K. Abichandani JJ. and from a perusal of the same it appears to us that the same are orders or decisions based on the facts and merits of those cases. It does not appear to us that the rejection of those applications was based on any principle of law. However, since these matters have been placed before us, we shall examine the same in the light of the observations made in the earlier decisions (unacceptable to the referring Bench) and on the basis of the contentions taken and submissions made before us by the learned counsel for the respective parties. 2.1 We may note here that the decisions found unacceptable by the referring Bench specifically deal with and reject the contention of the applicants to the effect that the merits of the substantive matter should be the only criterion for deciding the sufficiency of the cause for delay, even if the delay is not satisfactorily explained. 3. The questions which arise before us arise from the question of condonation of delay in filing the substantive matter, and how and on what legal principles the application for condonation of delay should be dealt with. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise on technical grounds but because it is capable of removing injustice and is expected to do so. 5.1. In the context of the said factors, learned counsel for applicants relied heavily upon the factors at item Nos. 2 and 4. In this context he submitted that if the Court refuses to condone delay in a matter which is meritorious in substance, the matter would be thrown out at the very threshold and this would result in injustice. He further submitted that factor No. 4 supports his contention that the ordained function of a Court being to render substantial justice, the cause of substantial justice must be preferred and cannot be overshadowed or negatived by technical considerations such as the bar of limitation. 5.2. In the context of the submissions made by the learned counsel for the applicants, we are bound to observe that these six factors have been enumerated in the said decision of the Supreme Court for a limited and specific purpose. These factors have not been enumerated, in our opinion, with a view to furnishing any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion the Supreme Court considered whether or not to apply the same standard in applying the sufficient cause test to all the litigants regardless of their personality character or capacity. In this case, a delay of 4 days in filing the appeal was not condoned and the application was rejected. The Court observed that the Legislature has Conferred a power on the Courts to condone delay (by enacting Section 5 of the Limitation Act) in order to enable the Courts to do substantial justice to parties by disposing of the matter on merits. It further observed that the expression sufficient cause employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserve the ends of justice and such liberal approach is adopted on the principles stated therein (we have incorporated the said principles in the beginning of the judgment). This would clearly mean that the six factors narrated above are the reasons why the facts constituting sufficient cause should be liberally interpreted so that substantial justice is done to the parties. The Supreme Court further observed that the doctrine of equality before law demands that all litigants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple, as attempted by the learned counsel for the applicant, on the basis of the decision in the case of Collector, Land Acquisition, Anantnag (AIR 1987 SC 1353) (supra). Thus, we have no hesitation in coming to the conclusion that the phrase sufficient cause involves only questions of fact to be considered by the Court dealing with the application for condonation of delay, and in considering the sufficiency of the cause, no question of principle is involved, I except that a liberal view should be adopted in the examination and interpretation of the facts which seek to establish. sufficient cause , as laid down in the case of Collector, Land Acquisition, Anantnag (supra). 6. This takes us to the next contention raised by learned counsel for the applicants viz. that the cause referred to variously as administrative delay/administrative reasons/ administrative procedure is itself a sufficient cause, irrespective of the facts of the case, on the premise's that the same is a question of principle. This submission on the part of the learned counsel for the applicants is misconceived inasmuch as, when the delay is sought to be condoned for the cause or causes referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o uphold this submission. 6.2. In this context, the observations of the Supreme Court in the case of Binod Bihari Singh v. Union of India, reported at AIR 1993 SC 1245 are relevant. The observations made in para 10 of the said decision are of far-reaching effect. Their Lordships of the Supreme Court observed that they were not inclined to hold that the delay in presenting the application (the substantive matter) deserves to be condoned on the facts and circumstances of the case. They further observed that in their view it is not at all a fit case where in the anxiety to render justice to a party so that _a just cause is not defeated, a pragmatic view should be taken by the Court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act . The contention, that the ignoble plea of bar of limitation sought to be raised by the respondent should not be taken into consideration in order that the just claim of the appellant should not be defeated, was emphatically negatived. Their Lordships further went on to observe, merely by way of an indication, that it may not be desirable for a Government or a public authority to take shelter under the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, therefore, agree with the submission that where the opponent in an application for condonation fails to establish negligence, inaction or want of bona fides on the part of the party seeking condonation, such an application must be granted. In view of a plain reading of Section 5 of the Limitation Act, although there is no specific onus or burden of proof contemplated by the provision, it is implicit that it is the applicant who has to satisfy the Court as regards the sufficiency of the cause. As already observed in various decisions referred to by us, the sufficiency of the cause for condonation is always a question of fact and must necessarily differ from case to case. 7. The next contention raised by the learned counsel for the applicant is to the effect that the merits of the substantive matter, in respect of which the delay is sought to be condoned, must be examined, and where it is found that the substantive matter is good on merits, any and all delay in filing the substantive matter must be condoned, even if the delay is not satisfactorily explained. In substance, therefore, the contention is to the effect that the merits of the substantive matter is the sole criterion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be placed on a decision of the Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat, reported at (1981) 22 GL.R 268. We are afraid that even this decision does not advance the case of the applicant inasmuch as the same does not lay down any principle which is relevant or pertinent to the questions which are before us for consideration. The only principle laid down in the said decision is that the sufficiency of the cause for condonation of delay must relate to some events or circumstances arising or existing before the period of limitation expires, and that no event or circumstances arising after the expiry of limitation can constitute a sufficient cause which would justify condonation of delay. This principle has no bearing on the controversy before us. 8. The conclusion drawn by us herein-above is further supported by another decision of the Supreme Court in the case of G. Ramagowda v. Special Land Acquisition Officer, Bangalore, reported at AIR 1988 SC 897. In paragraph 7 of this decision, their Lordships have observed that there is no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court had condoned the delay in the interest of keeping the stream of justice pure and clean, the Supreme Court declined to interfere. 9. Reliance was sought to be placed on a decision of the learned single Judge of this Court (C. K. Thakkar, J.) in the case of Municipal Corporation of Admedabad v. Manish Enterprises, reported at 3(2) G LR 1252 : (AIR l993 Guj 145). This decision constitutes a detailed and erudite analysis of the case law on the subject of condonation of delay. The ratio laid down in the said decision, inter alia, is to the effect that Government departments and local authorities cannot claim any privilege in regard to condonation of delay and they must be treated at par with private individuals, and the delay can be condoned only if sufficient cause is shown. This decision also analyses in detail the ratio laid down in the case of Collector, Land Acquisition, Anantnag(AIR 1987 SC 1353) (supra) and after a detailed analysis comes to the same conclusion arrived at by us hereinabove. However, the present decision does not cast any light on the controversy presently before us. 10. In the context of the above discussion we must also take note of a decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Nathreported. 11. In view of the above discussion and findings, we conclude and hold in respect of the question raised in the present reference as under : 1. The phrase sufficient cause as occurring in Section 5 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply its mind and arrive at a conclusion as to whether the cause is sufficient or otherwise, in essence, therefore, the phrase sufficient cause is not a question of principle, but is a question of fact. 2. The plea on the part of the applicants that the delay was caused by administrative delay/administrative reasons/administrative procedure (and analogous expressions) is merely an averment in the nature of a plea and, that by itself and ipso facto, does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established on the facts of the case, and must so be established to the satisfaction of the Court. 3. The merits of the substantial case in respect of which condonation is sought cannot over-ride the provisions of Section 5 of the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, as regards the appreciation of the relevant facts. 14. Thus, the questions under consideration are answered as indicated hereinabove. These applications shall be placed before the Division Bench for a decision on merits, in accordance with the principles stated herein. M.B. Shah, J. (Concurring) 15. I agree with the reasons and conclusions arrived at in the judgment rendered by my learned brother Y. B. Bhatt, J. in short,, the question involved is whether delay in filing appeal or application is required to be condoned only because the appellant/applicant which is a Municipal Corporation has a good case on merits. 16. In the referring judgment, the Division Bench (Coram; R.A. Mehta R.D. Vyas, JJ.) has observed : On the matter of condonation of delay, a reference to the Full Bench may appear to be unusual, but since there are quite a few such cases and more are likely, such reference is necessary. Since we are unable to agree with the conclusions of the earlier Division Bench, the comity required that a subsequent Division Bench may not take a contrary view on the same facts and circumstances of the case. Therefore, we think it proper to refer these applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, the contention that the delay is required to be condoned on the ground that the applicant has a good case on merits or that the merits of the matter should be considered as a predominant factor for condonation of delay requires to be rejected. Delay is condoned if sufficient cause for delay is shows. But that would not mean that for deciding the application for condonation of delay, merits should be decided. If the merits are decided for condoning delay, it would be against the provisions of Section 3 of the Limitation Act, 1963. Section 3, inter alia, specifically provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 3 of the Limitation Act is mandatory and is based on well-recognised principles of equity. This bar is subject to the provision of Sections 4 to 24 of the Limitation Act. 21. In such a situation, Section 5 of the Limitation Act empowers the Court to condone delay if sufficient cause for not filing appeal or application within time is pointed out. Sufficient cause for delay in filing appeal can never be substituted by the meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or laches. The Court has further observed that Courts of justice cannot legislate or reconstruct law contained in a statute or introduce exceptions when statutory law debars them from doing so. Even hard, circumstances of a case do not justify the adoption of such a course. The Court has also . stated that the effect of Section 3 of the Limitation Act is that it expressly precludes exclusion of time on a ground outside the Act even if it parades under the guise of a doctrine which has no application whatsoever. For the policy underlying statutes of limitation, the Court relied upon the following passage in Halsbury's Laws of England Vol. 24, p. 181 (para 330) : 330. Policy of Limitation Act : The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, (i) that long dormant claims have more of cruelty then justice in them (2) that defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence. From this paragraph, if can be stated that person with good causes of action i.e., good causes on merits should pursue them with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministered in an even-handed manner and that 'sufficient cause' should be liberally interpreted for the reasons stated therein. Six factors are enunciated in paragraph 3 for holding as to why 'sufficient cause' should be liberally construed. 27. Similarly, in the case of G. Ramegowda (AIR 1988 SC 897) (supra), the Court considered what factors would constitute 'sufficient cause' for the purpose of Section 5 and observed that a certain amount of latitude is not impermissible in favour of Government because of bureaucratic functioning. But that of course should be within reasonable limit. This judgment also in view nowhere lays down that delay should be condoned merely on the ground that, on merits, the authority has a good case. 28. The other decisions which are referred to by the learned advocates for the parties are discussed elaborately in the judgments rendered by my learned brothers, Y. B. Bhatt H. L. Gokhale, JJ., and therefore I am not dealing with them. 29. Hence, it is required to be held that delay in filing appeal or application cannot be condoned solely on the so-called ground that there was delay because of administrative reasons admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority view (Per : M.B. Shah Y.B. Bhatt, JJ.) (Concurring) is as under : 1. The phrase 'sufficient cause' as occurring in Section 8 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply is mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase 'sufficient cause' is not a question of principle, but is a question of fact. Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as 'sufficient cause' for condonation of delay depends only on the facts placed by the applicants before the Court; 2. The plea, on the, part to the applicants that the delay was caused by 'administrative delay administrative reasons/administrative procedure' (and analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too to the satisfaction of the Court. Hence, it cannot be held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , JJ.) declined to condone the delay in the appeals preferred by Ahme-dabad Municipal Corporation and rejected Civil Applications No. 587 to 1990 and 539 of 1990, by an oral judgment dated 24th June, 1992. Thereafter, the present group of matters, wherein; also there was delay and the Admedabad Municipal Corporation had applied for condonation of delay, came up before another Division Bench, i.e. before Shri R.A. Mehta and Shri R.D. Vyas, JJ. The oral judgment given by Shri C.V. Jani and Shri R.K. Abichandani, JJ. was relied upon by the respondents before be Division Bench of Shri R.A. Mehta and Shri R.D. Vyas, JJ. The Division Bench of Shri R.A. Mehta and Shri R.D. Vyas, JJ. found themselves unable to agree with the conclusion of the earlier Division Bench, Hence they observed : The comity requires that the subsequent Division Bench may not take a contrary view on same facts and circumstances and, therefore we think it proper to refer the applications to be placed before the larger Bench. 34. From the referring order, it further appears that in the opinion of the referring Division Bench, there was difference in the situation where there was a small delay as against where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Guj LR 1252 : (AIR 1993 Guj 145). It was submitted by the counsel for the applicant that the law laid by the Supreme Court in Collector, Anantnag's case, as amplified in Ramegowda's case, holds the field. In fact, the latter judgment answers both the queries that are raised in the present reference. In Collector, Land Acquisition, Anantnag's case, an appeal preferred by the state of Jammu Kashmir against a decision enhancing compensation in respect of acquisition of lands for public purpose had been dismissed as time barred by four days. Hence an appeal by Special Leave had been preferred to the Supreme Court. In the facts of the case, the Supreme Court held that there was sufficient cause for delay and, hence, the order of the High Court was set aside. However, what the Supreme Court observed while deciding the matter is most relevant. The Supreme Court noted that the power to condone delay in Section 5 of the Indian Limitation Act, 1963, had been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits. The Court observed that the expression sufficient cause employed by the Legislature is adequately elastic t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les a decision on merits. 38. Thus, while condoning a small delay of four days, the Supreme Court laid down the guidelines containing the message which it wanted to percolate down to all other Courts in the hierarchy. The emphasis in the judgment is clearly on understanding the difficulties of the State and the public bodies and to decide the matters on merits in preference to technical considerations. 39. The same approach finds a place in the subsequent judgment of the Supreme Court in the case of Ramegowda reported in AIR 1988 SC 897. That judgment was given in three appeals by claimants-respondents in certain Land Acquisition Appeals before the High Court of Mysore (Karnataka). The High Court had condoned substantial delays leading to the appeals to the Supreme Court. The grievance of the State in the appeal before the High Court was that, though the lands were purchased in the year 1962 for a sum of ₹ 7,000/- per acre and though the preliminary notification for acquisition was issued in just about a year after the purchase by the claimants, the Land Acquisition Officer made a generous award, granting ₹ 58,000/- per acre and that was further enhanced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage in the case of Collector Anantnag, with approval (Para 7):-- 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 non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice ,on techinical grounds but because it is capable of removing injustice and is expected to do so. 42. Having laid down the above general proposition in paragraph 8 (of AIR 1988 SC 897), the Supreme Court proceeded to examine the special aspects in litigations on which Government is a party. The Supreme Court noted that if the appeals brought by the Government are lost by such defaults, in the ultimate analysis, what suffers is the public interest. Although the law of limitation is, no doubt, the same for a private citizen as for the Government, the Court noted that, a somewhat different complexion is imparted to the matter where Government makes a case where a public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself and not to the Government Pleaders. This was so because the Civil Judge concerned had written to the Government on 20th February, 1971 and the letter was put on notice of the award and decree passed in the cases. Hence, the delay on the part of the Government thereafter for over a year could not be said to be either bona fide or compelled by reasons beyond its control. The Supreme Court accepted this criticism and yet held as follows (at page 901) :-- This criticism is not without substance. Government could and ought to have mpved with greater diligence and dispatch consistent with the urgency of the situation. The conduct of Government was perilously close to such inaction as might, perhaps; have justified rejection of its prayer for condonation. But as is implicit in the reasoning of the High Court, the unarticulated thought, perhaps, was that in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits. The Supreme Court preferred not to interfere into an order of the High Court clearly indicating that in spite of this conduct of the Government so perilou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 : AIR 1993 Guj 145), the learned single Judge has followed the law laid down in the case of Collector, Anantnag (AIR 1987 SC 1353) and Ramegowda's case (AIR 1988 SC 897) and has held -- ...... the Court has to bear in mind the principle of substantial justice. .... The question is whether there is inaction negligence or want of bona fides as observed by the Supreme Court. He further observed in para 8 of his judgment-- ...... However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic Government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency. 46. The learned counsel for the respondents relied on the following authorities;-- (1) Ajit Singh v. State of Gujarat (1981)22 GLR (SC) 268; (2) State of Gujarat v. Sayed Mohd., AIR 1981 SC 1921; (3) Ram Bhavan Singh v. Jagdish, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was time barred by more than three months and a half. As the Supreme Court observes No sufficient cause, however, for the condonation of the delay is made out from any material on the record; As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move Court till the 29th August, 1979 either for haying the legal representatives of the deceased brought on record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant. It is true that it was contended on behalf of the State in the Supreme Court that it had a strong case on merits and the Supreme Court has rejected the said submission on the following lines (Para 3):-- Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (AIR 1993 SC 1245) there was delay in the appellant filing the arbitration award in Court. To seek the condonation, the appellant had sought to make positive case that he had filed application within three weeks from the date of receipt of the award. On the evidence before the, Court, the High Court disbelieved that evidence and it was held that delay could not be condoned on the ground that the appellant was misled by the provisions of the old limitation Act. Ramegowda's case (AIR 1988 SC 897) was cited before the Supreme Court by the appellant by contending that the Court should be slow in shutting the door of justice to a litigant on the score of limitation to defeat a just claim because a litigant does not stand to gain by coming late to a Court. In the facts of the case, however, the Supreme Court held -- In our view, it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be, taken by the Court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act..........the appellant, in this case, having taken a false stand on the question of receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a reasonable limit is necessary, if the judicial approach is not rendered unrealistic. Hence, short delays which are attributable to procedural delay and incidental to the very decision making process of the public bodies have generally to be condoned. This answers the first out of the two questions before us for our consideration. 52. Again as stated in the case of Collector, Anantnag (AIR 1987 SC 1353) the power to condone delay has been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits and, as held in the case of G. Rame-gowda -- In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost by such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. ..... .a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. Therefore in assessing what, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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