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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2970-2971 OF 2012

Maniben Devraj Shah … Appellant(s)

Versus

Municipal Corporation of Brihan Mumbai … Respondent

J U D G M E N T

G. S. Singhvi, J.

1. Whether  the  cause  shown  by  Municipal  Corporation  of  Brihan  

Mumbai (for short, ‘the Corporation’) for condonation of 7 years and 108  

days delay in filing appeals against judgments and decrees dated 2.5.2003  

passed by the City Civil Court (hereinafter referred to as ‘the trial Court’) in  

L.C. Suit Nos. 2726, 2727, 2728 of 1999 was sufficient cause within the  

meaning of Section 5 of the Limitation Act and the learned Single Judge of  

the Bombay High Court was justified in condoning the delay is the question  

which arises for consideration in these appeals.

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2. At  the outset,  it  deserves to  be mentioned that  the respondent  had  

withdrawn one of the three appeals filed before the High Court and, as such,  

the impugned order makes a reference to the two appeals only.

3. The appellants filed suits for grant of a declaration that notices issued  

by the Corporation under Section 314 of the Mumbai Municipal Corporation  

Act, 1888 (for short, ‘the Act’) for demolition of the properties specified in  

the plaints are illegal and not binding on them. They pleaded that the action  

taken by the Corporation is discriminatory and liable to be annulled because  

some persons whose structures were taken for road widening were allowed  

to construct mezzanine floor in the remaining portions of their respective  

properties  and  were  also  allotted  alternative  accommodation  in  the  new  

building  but  they  were  not  given  similar  benefit.  The  appellants  further  

pleaded that they had entered into development agreements with Shamji D.  

Shah and Popatbhai Baghbhai Bharwad for developing the property and they  

will construct market for and on behalf of the Corporation. They prayed for  

issue  of  a  direction  to  the  respondent  to  provide  shops  in  the  market  

proposed  to  be  constructed  on  C.T.S.  No.997,  Near  Purnapragya  High  

School, Bharucha Marg, Dahisar (E), Bombay.  

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4. In  the  written  statement  filed  on  behalf  of  the  Corporation,  an  

objection was taken to the maintainability of  the suit  on the ground that  

notice under Section 527 of the Act had not been given by the appellants. On  

merits,  it  was  pleaded  that  the  appellants  had  raised  construction  on  a  

portion of the road and it had become necessary to demolish the same for  

widening the existing road.  

5. On the pleadings of the parties the trial Court framed identical issues  

in all the suits. For the sake of reference, the issues framed in LC Suit No.  

2726  of  1999  titled  Smt.  Maniben  Devraj  Shah  v.  The  Municipal  

Corporation of Greater Bombay are reproduced below:

“ ISSUES FINDINGS

1. Does   the  plaintiff  prove  that  notice  issued  u/s.  314  of  BMC  Act  is  illegal,  bad  in  law,  malafides and inexcitable?

In the affirmative

2. Does the plaintiff prove that she is  entitled  for  alternate  accommodation  in  lieu  of  structure  affected  by  road  widening?

In the affirmative

3. Does the plaintiff  prove that suit  is  maintainable  for  the  want  of  notice u/s. 527 of BMC Act?

In the affirmative

4. Whether  the  plaintiff  is  entitled As per final order

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for any relief?

5. What order? As per final order”

6. After considering the pleadings of the parties and evidence produced  

by them, the trial Court decreed the suits by separate but identical judgments  

dated 2.5.2003.

7. The Corporation did not challenge the judgments of the trial Court  

within  the  prescribed period of  limitation  and filed  appeals  sometime  in  

September, 2010 along with the applications for condonation of 7 years and  

108  days  delay.  In  support  of  its  prayer  for  condonation  of  delay  the  

Corporation also filed the affidavits of Shri Ranindra Y. Sirsikar, Junior Law  

Officer.   For  the  sake  of  reference,  paragraph  3  of  the  application  for  

condonation  of  delay  and paragraphs  2,  3  and 5 of  the  affidavit  of  Shri  

Ranindra Y. Sirsikar filed in First Appeal No. 3691 of 2010 titled Municipal  

Corporation  of  Brihan  Mumbai  v.  Smt.  Maniben  Devraj  Shah  are  

reproduced below:

APPLICATION FOR CONDONATION OF DELAY

“3)  The  applicants  herein  have  filed  the  present  first  appeal  against the order dated 2.5.2003 and applied for certified copy  of  judgment  on  23.8.2010  and same  was  made  available  on  6.9.2010 and collected on 6.9.2010. The applicant corporation  

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being the administrative and statutory body, certain requisitions  and  formalities  for  preferring  an  first  appeal  in  the  Hon’ble  High Court has to be complied with. The applicant submit that  the said papers which were required for the preferring the first  appeal  were  misplaced  and  not  traceable  in  spite  of  good  efforts.  The  applicant  submit  that  meanwhile  concerned  advocate who has appeared in the above suit  was transferred  from the city civil section to criminal section in the month of  June 2004 and therefore loss the tract of matter and the said  first  appeal  remained to  be filed due to oversight  and heavy  work load. The applicant submit that concerned advocate was  also transferred from criminal section to high court suit section  in the month of October, 2005. The applicant submit that the  concerned advocate who has appeared in the suit came to know  that  plaintiff  has  fraudulently  obtained  alternate  accommodation  under  order  passed  by  Hon’ble  City  Civil  Court on 2.5.2003 even when respondent was given permission  for constructing the mezzanine floor to the extent of structure  affected by road widening. The applicant say and submit that  the concerned development and thereafter immediate steps were  taken  to  reconstruct  the  brief  and  preferred  the  first  appeal  immediately. The applicant therefore say and submit that there  is  delay  of  days  in  preferring  the  present  first  appeal.  The  applicant  submit  that  delay  in  preferring  the  appeal  is  not  deliberate  and  intentional.  The  same  is  caused  due  to  circumstances  narrated  herein  above.  Therefore  delay  be  condoned.”

AFFIDAVIT OF SHRI RANINDRA Y. SIRSIKAR

“2. I say that the present suits bearing No. (1) 2726 of 1999,  2727 of 1999 and 2728 of 1999 was decreed on 02.05.2003 by  Hon’ble  City  Civil  Court.  I  say  that  I  was  on  leave  from  30.4.2003 till 11.5.2003. I resumed my office by 12.5.2003. A  copy of leave application is annexed herewith and marked as  Exhibit-A. I say that as per the office procedure, the necessary  intimation was also forwarded to the concerned department and  informed them about the court orders dated 2.5.2003. A copy of  dispatch extract regarding intimation to the concerned ward on  

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12.5.2003 is annexed herewith and marked as Exhibit B. I say  that  thereafter,  from  the  record  it  seems  that  concerned  department  misplaced  the  papers  and  were  not  traceable  so  nobody followed up on the matter. I say that from 2.1.2004, I  was transferred to Miscellaneous Court. A copy of the office  order regarding transfer is annexed and marked as Exhibit – C.  I say that I was again transferred from Miscellaneous Court to  Criminal  Court  from  5.6.2004.  A  copy  of  the  office  order  regarding transfer is annexed herewith and marked as Exhibit –  D. I was with the Criminal Section from 5.6.2004 to 28.9.2005.  I  was  again  transferred  from  Criminal  Court  to  High  Court  Original Side w.e.f.  28.9.2005 till  date. A copy of the office  order  regarding  transfer  is  annexed  herewith  and  market  as  Exhibit – E. I say that in view of the facts, I was transferred  from City Civil Court, and various courts, I could not follow up  with the matter.

3.  I  say  that  in  the  instant  case,  the  Local  Councillor  Shri  Prakash Karkar wrote a letter on 20.7.2010 to the concerned  Additional  Municipal  Commissioner  requesting  for  joint  meeting  regarding  widening  of  road  and  expediting  the  development  and  construction  of  Municipal  Market,  i.e.,  property  under  reference.  A  copy  of  letter  dt.  20.7.2010  of  Local Councillor Shri Prakash Karkar is annexed herewith and  marked as Exhibit – F. I say that accordingly joint meeting was  held  in  the  Chamber  of  Addl.  M.C.  on  2.8.2010,  when  all  concerned officers along with Jt. Law Officer (City Civil Court  Section) of Legal Department of the appellant was also present  in the said meeting. In the course of said meeting, it came to the  notice that the respondents are claiming the right of alternative  accommodation  pursuant  to  impugned  order  in  view of  that  matter, respective Addl. Municipal Commissioner directed Jt.  Law Officer (City Civil Court Section) of Legal Department to  study  entire  matters  and  also  ascertain  above  appeal  and  its  stage against the judgment and order dated 2.5.2003 passed by  City Civil Court. A copy of minutes dated 2.8.2010 is annexed  herewith and marked as Exhibit – G.

5. I say that though papers were misplaced and not traceable, I  personally inquired with the staff of High Court (Appellate Side  

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High  Court  Section  of  the  Legal  Department)  on  17.8.2010,  whether  any  appeal  has  been  filed  against  the  order  and  judgment dated 2.5.2003. I  came to know on 19.8.2010, that  appeal has not been filed as neither the said proceedings nor  copy of order dated 2.5.2003 were put up before undersigned  for drafting an appeal. I immediately directed to the concerned  Managing Clerk on 19.8.2010 to file an application for certified  copy of judgment and order dated 2.5.2003. Accordingly,  an  application for certified copy was made on 23.8.2010 and same  was  made available  on  6.9.2010 and certified  copy of  order  dated 2.5.2010 was also delivered on 6.9.2010 and accordingly,  appeal has been filed on 16.9.2010.”

8. The  appellants  contested  the  prayer  made  by  the  Corporation  for  

condonation  of  delay  by  asserting  that  the  story  of  misplacement  of  the  

papers is unbelievable and is liable to be discarded because the applications  

for condonation of delay do not mention as to when the misplaced papers  

were traced out by the concerned department.  They also pleaded that the  

transfer of Shri Ranindra Y. Sirsikar from one section to the other has no  

bearing on the issue of condonation of delay because the Corporation has  

employed several advocates and no explanation whatsoever has been offered  

for not filing the applications for certified copies of the judgment of the trial  

Court till 23.8.2010.

9. The learned Single Judge of the High Court referred to the judgments  

of this Court in Collector, Land Acquisition, Anantnag v. Mst.Katiji (1987)  

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2 SCC 107 and State  of  Nagaland v.  Lipok AO (2005) 3 SCC 752 and  

condoned the delay by recording the following observations:

“Having regard to over all facts and circumstances of the case,  the cause shown by the Corporation for condonation of delay,  in  my  opinion,  is  sufficient  and  the  delay  deserves  to  be  condoned. I is well settled that the expression “sufficient cause”  is adequately elastic to enable the courts to apply the law in a  meaningful  manner which subserves  the ends of  justice.  The  court  are  expected  to  take  liberal  approach  in  such  matters  where  refusal  to  condone  delay  is  likely  to  result  in  a  meritorious matter being thrown out at the very threshold.

Taking the law laid down by the Supreme Court in view and  considering over all facts and circumstances of the case, so also  the fact that if the delay is not condoned the meritorious appeal  is likely to be thrown at the very threshold, I am inclined to  condone  the  delay  in  filing  these  appeals.  Hence,  the  Civil  Application Nos. 3625 of 2010 and 3691 of 2010 are allowed in  terms of prayer clause (a).”

10. Shri A.S. Bhasme, learned counsel for the appellants argued that the  

reasons assigned by the learned Single Judge for condoning more than 7  

years and 3 months delay in filing the appeals are legally unsustainable and  

the impugned order is liable to be set aside because the explanation given by  

the Corporation lacked bonafides and was wholly unsatisfactory.  Learned  

counsel emphasized that in the absence of any denial by the Corporation that  

it has a battery of advocates to deal with the litigation, the transfer of Shri  

Ranindra  Y.  Sirsikar  in  January,  2004  to  Miscellaneous  Court  and,  

thereafter, to other Courts has no bearing on the issue of delay because the  

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suits  filed  by  the  appellants  had  been  decided  in  May,  2003  and  no  

explanation has been given as to why applications for certified copies could  

not be filed for 7 years and 5 months. Shri Bhasme submitted that even if  

one advocate / law officer was transferred from one department / division to  

another, nothing prevented the Corporation from taking steps to apply for  

certified copies  of  the  judgment.  Shri  Bhasme further  submitted  that  the  

story of misplacement of papers was concocted by the Corporation and the  

same ought to have been rejected by the High Court because the assertion  

made in that regard was vague to the core and no indication was given as to  

when the papers were traced and by whom.  In support of his argument, Shri  

Bhasme  relied  upon  the  judgments  of  this  Court  in  Oriental  Aroma  

Chemical Industries Limited v. Gujarat Industrial Development Corporation  

(2010) 5 SCC 459.

11. Shri  Pallav  Shishodia,  learned  senior  counsel  appearing  for  the  

Corporation argued that the discretion exercised by the learned Single Judge  

of  the  High Court  to  condone  the  delay  does  not  suffer  from any legal  

infirmity and the mere possibility that this Court may, on a fresh analysis of  

the pleadings of the parties, form a different opinion does not furnish a valid  

ground for exercise of power under Article 136 of  the Constitution.  Shri  

Shishodia submitted that in last more than two decades the Courts have time  

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and again emphasized that while considering the question of condonation of  

delay,  the  pleadings  of  the  parties  should  be  construed liberally  and the  

genuine cause of a party should not be defeated by refusing to condone the  

delay. In support of his argument, Shri Shishodia relied upon the often cited  

judgments in Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra)  

and State of Nagaland v. Lipok AO (supra). Shri Shishodia also pointed out  

that the appellants had raised illegal construction and if the challenge to the  

decrees passed by the trial Court was aborted by the High Court by refusing  

to condone the delay, serious injury would have been caused to the public  

interest.  

12. We  have  considered  the  respective  arguments  /  submissions  and  

carefully scrutinized the record.  The law of limitation is founded on public  

policy.  The Limitation Act, 1963 has not been enacted with the object of  

destroying the rights of the parties but to ensure that they approach the Court  

for  vindication  of  their  rights  without  unreasonable  delay.  The  idea  

underlying the  concept  of  limitation  is  that  every  remedy should  remain  

alive only till the expiry of the period fixed by the Legislature. At the same  

time,  the  Courts  are  empowered  to  condone  the  delay  provided  that  

sufficient cause is shown by the applicant for not availing the remedy within  

the prescribed period of limitation. The expression ‘sufficient cause’ used in  

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Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to  

enable the Courts to apply the law in a meaningful manner which serve the  

ends of  justice.  No hard and fast  rule has been or  can be laid down for  

deciding the applications for condonation of delay but over the years this  

Court  has  advocated  that  a  liberal  approach  should  be  adopted  in  such  

matters  so  that  substantive  rights  of  the  parties  are  not  defeated  merely  

because of delay.   

13. In Ramlal  v.  Rewa Coalfields Ltd.   AIR 1962 SC 361, this  Court  

while interpreting Section 5 of the Limitation Act, laid down the following  

proposition:

“In construing Section 5 (of the Limitation Act), it is relevant to  bear  in  mind  two  important  considerations.  The  first  consideration is that the expiration of the period of limitation  prescribed for making an appeal gives rise to a right in favour  of the decree-holder to treat the decree as binding between the  parties. In other words, when the period of limitation prescribed  has expired, the decree-holder has obtained a benefit under the  law of limitation to treat the decree as beyond challenge, and  this legal right which has accrued to the decree-holder by lapse  of  time  should  not  be  light-heartedly  disturbed.  The  other  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.”  

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14. In Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra), this  

Court made a significant departure from the earlier judgments and observed:  

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

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

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.

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.

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.

5. There  is  no  presumption  that  delay  is  occasioned  deliberately,  or  on  account  of  culpable  negligence,  or  on  

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account of mala fides. A litigant does not stand to benefit by  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  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.  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  for  according  a  step-motherly  treatment  when  the  “State”  is  the  applicant  praying  for  condonation of delay. In fact experience shows that on account  of an impersonal machinery (no one in charge of the matter is  directly hit or hurt by the judgment sought to be subjected to  appeal)  and  the  inherited  bureaucratic  methodology  imbued  with  the  note-making,  file-pushing  and  passing-on-the-buck  ethos,  delay on its  part  is  less  difficult  to understand though  more  difficult  to  approve.  In  any  event,  the  State  which  represents  the  collective  cause  of  the  community,  does  not  deserve a litigant-non-grata status. The courts therefore have to  be informed with the spirit and philosophy of the provision in  the  course  of  the  interpretation  of  the  expression  “sufficient  cause”. So also the same approach has to be evidenced in its  application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which  scuttles a decision on merits.”

15. In  N.  Balakrishnan  v.  M.  Krishnamurthy,  (1998)  7  SCC  123,  the  

Court went a step further and made the following observations:

“It  is  axiomatic  that  condonation  of  delay  is  a  matter  of  discretion of the court. Section 5 of the Limitation Act does not  

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say that such discretion can be exercised only if the delay is  within  a  certain  limit.  Length  of  delay  is  no  matter,  acceptability of the explanation is the only criterion. Sometimes  delay of the shortest range may be uncondonable due to a want  of acceptable explanation whereas in certain other cases, delay  of a very long range can be condoned as the explanation thereof  is  satisfactory.  Once  the  court  accepts  the  explanation  as  sufficient, it is the result of positive exercise of discretion and  normally  the  superior  court  should  not  disturb  such  finding,  much  less  in  revisional  jurisdiction,  unless  the  exercise  of  discretion  was  on  wholly  untenable  grounds  or  arbitrary  or  perverse. But it is a different matter when the first court refuses  to condone the delay. In such cases, the superior court would be  free to consider the cause shown for the delay afresh and it is  open to such superior court to come to its  own finding even  untrammelled by the conclusion of the lower court.

Rules of limitation are not meant to destroy the rights of parties.  They  are  meant  to  see  that  parties  do  not  resort  to  dilatory  tactics, but seek their remedy promptly. The object of providing  a legal remedy is to repair the damage caused by reason of legal  injury.  The  law of  limitation  fixes  a  lifespan  for  such  legal  remedy for the redress of the legal injury so suffered. Time is  precious and wasted time would never revisit. During the efflux  of  time,  newer  causes  would  sprout  up  necessitating  newer  persons to seek legal remedy by approaching the courts. So a  lifespan must be fixed for each remedy. Unending period for  launching the  remedy may lead  to  unending uncertainty  and  consequential anarchy. The law of limitation is thus founded on  public policy. It is enshrined in the maxim interest reipublicae  up sit finis litium (it is for the general welfare that a period be  put to litigation). Rules of limitation are not meant to destroy  the rights of the parties. They are meant to see that parties do  not  resort  to dilatory tactics  but seek their remedy promptly.  The idea is that every legal remedy must be kept alive for a  legislatively fixed period of time.

It must be remembered that in every case of delay, there can be  some lapse on the part of the litigant concerned. That alone is  not enough to turn down his plea and to shut the door against  

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him. If the explanation does not smack of mala fides or it is not  put  forth as  part  of  a  dilatory strategy,  the court  must  show  utmost consideration to the suitor. But when there is reasonable  ground  to  think  that  the  delay  was  occasioned  by  the  party  deliberately  to  gain  time,  then  the  court  should  lean  against  acceptance of the explanation. While condoning the delay, the  court should not forget the opposite party altogether. It must be  borne in mind that he is a loser and he too would have incurred  quite large litigation expenses. It would be a salutary guideline  that when courts condone the delay due to laches on the part of  the applicant, the court shall compensate the opposite party for  his loss.”

16. In  P.K.  Ramachandran v.  State  of  Kerala,  (1997)  7 SCC 556, this  

Court while  reversing  the  order  passed  by  the  High  Court  which  had  

condoned 565 days delay in filing an appeal by the State against the decree  

of  the  Sub-Court  in  an  arbitration  application,  observed  that  the  law  of  

limitation may harshly affect a particular party but it has to be applied with  

all its rigour when the statute so prescribes and the Courts have no power to  

extend  the  period  of  limitation  on  equitable  grounds.   In  Vedabai  v.  

Shantaram Baburao  Patil,  (2001)  9  SCC 106, the  Court  observed  that  a  

distinction must be made between a case where the delay is inordinate and a  

case where the delay is of  few days and whereas in the former case the  

consideration of prejudice to the other side will be a relevant factor, in the  

latter case no such consideration arises.

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17. In  State  of  Nagaland  v.  Lipok  AO  (supra),  the  Court  referred  to  

several precedents on the subject and observed that the proof of sufficient  

cause is a condition precedent for exercise of 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.  The Court also took cognizance of the usual  

bureaucratic delays which takes place in the functioning of the State and its  

agencies/instrumentalities and observed:

“Experience shows that on account of an impersonal machinery  (no one in charge of the matter is directly hit or hurt by the  judgment sought to be subjected to appeal) and the inherited  bureaucratic methodology imbued with the note-making, file- pushing, and passing-on-the-buck ethos, delay on its part is less  difficult  to understand though more difficult  to approve.  The  State which represents collective cause of the community, does  not  deserve  a  litigant-non-grata  status.  The  courts,  therefore,  have  to  be  informed  with  the  spirit  and  philosophy  of  the  provision in the course of the interpretation of the expression of  sufficient  cause.  Merit  is  preferred  to  scuttle  a  decision  on  merits in turning down the case on technicalities  of  delay in  presenting the appeal.”

18. What needs to be emphasised is that even though a liberal and justice  

oriented approach is required to be adopted in the exercise of power under  

Section 5 of the Limitation Act and other similar statutes, the Courts can  

neither become oblivious of the fact that the successful litigant has acquired  

certain rights on the basis of the judgment under challenge and a lot of time  

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is consumed at various stages of litigation apart from the cost.  What colour  

the expression ‘sufficient cause’ would get in the factual matrix of a given  

case would largely depend on bona fide nature of the explanation.  If the  

Court finds that there has been no negligence on the part of the applicant and  

the cause shown for the delay does not lack bona fides, then it may condone  

the delay.  If, on the other hand, the explanation given by the applicant is  

found to be concocted or he is thoroughly negligent in prosecuting his cause,  

then it would be a legitimate exercise of discretion not to condone the delay.  

In cases involving the State and its agencies/instrumentalities, the Court can  

take note  of  the fact  that  sufficient  time is taken in the decision making  

process but no premium can be given for total lethargy or utter negligence  

on the part of the officers of the State and / or its agencies / instrumentalities  

and  the  applications  filed  by  them  for  condonation  of  delay  cannot  be  

allowed as a matter of course by accepting the plea that dismissal  of the  

matter  on the ground of bar  of  limitation will  cause injury to the public  

interest.

19. In the light of the above, it is to be seen whether the explanation given  

by the respondent for condonation of more than 7 years and 3 months delay  

was satisfactory and whether the learned Single Judge of the High Court had  

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correctly applied the principles laid down by this Court for the exercise of  

power under Section 5 of the Limitation Act.   

20. Though it may appear repetitive, we consider it necessary to notice the  

following salient features of the applications filed by the respondent and the  

affidavit of Shri Ranindra Y. Sirsikar:

1. As per the office procedure,  Shri Ranindra Y. Sirsikar had given  

intimation  to  the  concerned  department  about  the  trial  Court’s  

judgment dated 2.5.2003. This statement is supported by copy of  

the  despatch  extract  dated  12.5.2003  (Ext.  B)  filed  with  his  

affidavit.

2. According to the Corporation,  the papers required for  filing the  

first  appeals  were misplaced and not  traceable  in  spite  of  good  

efforts.   In  this  context,  Shri  Sirsikar  has  made  the  following  

statement:

“I say that thereafter, from the record it seems that the  concerned department misplaced the papers and were not  traceable.  So nobody followed up on the matter”

3. As per the averments contained in the application,  Shri  Sirsikar  

was transferred from  Civil  Section to Criminal  Section in June,  

2004 and, therefore, lost tract of the matter and the first appeals  

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remained to be filed due to oversight and heavy work load.  As  

against  this,  Shri  Sirsikar  states  that  he  was  transferred  to  

Miscellaneous Court on 2.1.2004 and from Miscellaneous Court to  

Criminal  Court  on 5.6.2004,  where he worked up to 28.9.2005.  

Thereafter, he was transferred to High Court on original side and  

was working there on the date of filing the affidavit.

4. As per the averments contained in the application,  the  advocate  

came  to  know  that  appellant  fraudulently  obtained  alternative  

accommodation under the judgment of the trial Court even though  

she was given permission for constructing mezzanine floor to the  

extent of structure affected by road widening.  In this context, Shri  

Sirsikar has disclosed that the issue relating to the claim made by  

the appellant for alternative accommodation was considered in the  

meeting held on 2.8.2010 in the chamber of Additional Municipal  

Commissioner and, on the basis of discussion held in that meeting,  

direction was given by him to the Managing Clerk on 19.8.2010 to  

file application for certified copy of the judgment.  According to  

Shri  Sirsikar,  the  application  was  made  on  23.8.2010  and  the  

certified copy was made available on 6.9.2010.

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21. The applications filed for condonation of delay and the affidavits of  

Shri Sirsikar are conspicuously silent on the following important points:

(a) The  name  of  the  person  who was  having  custody  of  the  

record has not been disclosed.

(b) The date, month and year when the papers required for filing  

the first appeals are said to have been misplaced have not  

been disclosed.

(c) The date on which the papers were traced out or recovered  

and name of the person who found the same have not been  

disclosed.

(d) No explanation whatsoever  has been given as to why the  

applications for certified copies of the judgments of the trial  

Court were not filed till 23.8.2010 despite the fact that Shri  

Sirsikar  had  given  intimation  on  12.5.2003  about  the  

judgments of the trial Court.

(e) Even though the Corporation has engaged battery of lawyers  

to conduct cases on its behalf, nothing has been said as to  

how the transfer of Shri Ranindra Y. Sirsikar operated as an  

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impediment  in  the  making  of  applications  for  certified  

copies of the judgments sought to be appealed against.   

22. Unfortunately, the learned Single Judge of the High Court altogether  

ignored the gapping holes in the story concocted by the Corporation about  

misplacement of the papers and total absence of any explanation as to why  

nobody even bothered to file applications for  issue of  certified copies of  

judgment for more than 7 years.  In our considered view, the cause shown by  

the Corporation for delayed filing of the appeals was, to say the least, wholly  

unsatisfactory  and  the  reasons  assigned  by  the  learned  Single  Judge  for  

condoning more than 7 years delay cannot but be treated as poor apology for  

the exercise of discretion by the Court under Section 5 of the Limitation Act.

23. In the result, the appeals are allowed.  The impugned order is set aside  

and the appeals filed by the respondent against the judgments of the trial  

Court are dismissed.  The parties are left to bear their own costs.

……………..…..……..…..………………..J.            [G.S. SINGHVI]

……………..…..……..…..………………..J.            [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi April 09, 2012.

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