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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.  8243  OF 2013 (Arising Out of SLP (C) No.25636 of 2009)

STATE OF RAJASTHAN & ANR. ... APPELLANT (S)

VERSUS

BAL KISHAN MATHUR (D) ...  RESPONDENT(S) THROUGH LRS. & ORS.

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2. Though the only issue that arises in this appeal is with  

regard  to  the  correctness  of  the  order  dated  12.11.2008  

passed by the Division Bench of the Rajasthan High Court  

declining  to  condone  the  delay  that  had  occurred  in  the  

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institution of Special Appeal Writ No.02033 of 2007 by the  

appellant, a  brief conspectus of the relevant facts would be  

appropriate.

3. An  order  of  eviction  dated  17.12.1980  under  the  

Rajasthan  Public  Premises  (Eviction  of  Unauthorized  

Occupants)  Act,  1964  was  passed  by  the  Estate  Officer  

against the respondent (Now represented by his legal heirs).  

The  respondent  was  unsuccessful  in  the  challenge  made  

against  the  said  order  in  an  appeal  before  the  learned  

District  Judge.   Thereafter,  the  respondent  filed  an  

application for review which was transferred to the court of  

learned Additional District Judge who heard the matter and  

decided the same on 17.12.1993 as if  he was hearing an  

appeal against the initial  order of the Estate Officer dated  

17.12.1980.  The State of Rajasthan, therefore, moved Civil  

Writ Petition No.3503 of 1995 before the High Court which  

was dismissed by the learned Single Judge holding that the  

tenancy of the respondent could not be determined except  

by following the provisions of Sections 106 and 111 of the  

Transfer of Property Act,  1882, as already held in another  

connected case.

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4. Aggrieved by the said order of the learned Single Judge  

of the High Court dated 19.05.2006, D.B. Special Appeal Writ  

No.02033 of 2007 was filed by the State on 08.11.2006.  The  

office  reported a  delay of 98 days in  filing of the appeal.  

Considering the explanation furnished by the State for the  

delay that had occurred, the Division Bench took note of the  

statement  made  by  the  appellant  in  the  condonation  

application that the appeal was filed on 02.11.2006 whereas  

it  was  actually  filed  on  08.11.2006.   The  Division  Bench,  

therefore, thought it proper to conclude that the period of six  

days  between  02.11.2006  and  08.11.2006  had  not  been  

explained.  Accordingly, the delay in filing the D.B. Special  

Appeal Writ was not condoned.  Resultantly, the appeal was  

dismissed.  Aggrieved, the State has filed the present appeal.  

5. We have heard Dr. Manish Singhvi, learned Additional  

Advocate  General  of  Rajasthan  for  the  appellant  and  Shri  

Shiv Sagar Tiwari, learned counsel for the respondent.

6. Learned counsel appearing for the appellant has urged  

that mention of the date 2.11.2006 as the date of filing of the  

appeal was inadvertent.  Alternatively, it is contended that  

even if it is assumed that the State had failed to offer any  

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explanation for filing the appeal on 08.11.2006 after making  

a  statement  that  the  same  was  filed  on  02.11.2006,  the  

period of six days’ is too insignificant to justify the view taken  

by the High Court.  Learned counsel has also tried to take us  

to the merits of the appeal filed by the State to show that the  

order  of  the  learned  Single  Judge  under  challenge  in  the  

appeal  is  ex-facie  incorrect  being  contrary  to  several  

pronouncements of this Court.  It is, therefore, urged that the  

impugned order would justify interference so as to ensure  

that the Appeal filed by the State is heard on merits.   

7. On the other hand, learned counsel appearing for the  

respondent  has  submitted  that  the  learned  Single  Judge  

while passing the order dated 19.05.2006 in the Civil  Writ  

Petition  No.3503  of  1995  had  exercised  jurisdiction  under  

Article 227 of the Constitution.   Under the provisions of the  

Rajasthan High Court Ordinance 1949 and the Rules framed  

thereunder providing for intra court appeals, appeals are not  

contemplated  against  orders  passed  by  a  learned  Single  

Judge in exercise of jurisdiction under Article 227.  On the  

aforesaid basis it is submitted that the D.B. Special Appeal  

filed  by  the  State  before  the  High  Court  was  not  

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maintainable.   The initial order of the learned Single Judge  

dated 19.05.2006 not being subject to any challenge in the  

present appeal before this Court, no interference is called for.

8. Having considered the rival  submissions advanced on  

behalf of the parties, we deem it necessary to make it clear  

that  in  the  present  appeal  we  would  not  in  any  way  be  

concerned  with  the  merits  of  the  dispute  between  the  

parties.  As already observed by us in the earlier part of this  

order it is only the question of condonation of delay in filing  

the D.B. Special Appeal that would require our consideration.  

The facts in this regard have already been noticed.   

9. It  is  correct  that  condonation  of  delay  cannot  be  a  

matter  of  course;  it  is  also  correct  that  in  seeking  such  

condonation  the  State  cannot  claim  any  preferential  or  

special  treatment.   However,  in  situation where there has  

been no gross negligence or deliberate inaction or lack of  

bonafides this Court has always taken a broad and liberal  

view  so  as  to  advance  substantial  justice  instead  of  

terminating  a  proceeding  on  a  technical  ground  like  

limitation. Unless the explanation furnished for the delay is  

wholly  unacceptable  or  if  no  explanation  whatsoever  is  

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offered or if the delay is inordinate and third party rights had  

become embedded during the interregnum the Courts should  

lean  in  favour  of  condonation.   Our  observations  in  

Postmaster  General  v.  Living  Media  India  Ltd.1 and  

Amalendu Kumar Bera v. State of West Bengal2 do not  

strike any discordant note and have to be understood in the  

context of facts of the respective cases.   

Postmaster General v. Living Media India Ltd.   (supra)   

“28. Though we are conscious of the fact that  in  a  matter  of  condonation  of  delay  when  there was no gross negligence or deliberate  inaction  or  lack  of  bona  fides,  a  liberal  concession  has  to  be  adopted  to  advance  substantial justice, we are of the view that in  the facts and circumstances, the Department  cannot  take  advantage  of  various  earlier  decisions. The claim on account of impersonal  machinery  and  inherited  bureaucratic  methodology of making several notes cannot  be  accepted  in  view  of  the  modern  technologies  being  used  and  available. The  law  of  limitation  undoubtedly  binds  everybody, including the Government.

29. In our view, it is the right time to inform  all the government bodies, their agencies and  instrumentalities  that  unless  they  have  reasonable  and  acceptable  explanation  for  the  delay  and  there  was  bona  fide  effort,  there  is  no  need  to  accept  the  usual  explanation that the file was kept pending for  several  months/years  due  to  considerable  

1 (2012) 3 SCC 563 2 (2013) 4 SCC 52

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degree of procedural red tape in the process.  The  government  departments  are  under  a  special obligation to ensure that they perform  their duties with diligence and commitment.  Condonation  of  delay  is  an  exception  and  should not be used as an anticipated benefit  for  the  government  departments. The  law  shelters everyone under the same light and  should not be swirled for the benefit of a few.”

Amalendu Kumar Bera v. State of West Bengal   (supra)   

“10.  ... True it  is, that courts should always  take  liberal  approach  in  the  matter  of  condonation  of  delay,  particularly  when  the  appellant  is  the  State  but  in  a  case  where  there  are  serious laches and negligence on  the  part  of  the  State  in  challenging  the  decree  passed  in  the  suit  and  affirmed  in  appeal, the State cannot be allowed to wait to  file objection under Section 47 till the decree- holder puts the decree in execution. ... Merely  because the respondent is the State, delay in  filing the appeal or revision cannot and shall  not  be  mechanically  considered  and  in  the  absence of “sufficient cause” delay shall not  be condoned.”

10. In  the  present  case,  the  High  Court  seems  to  have  

accepted  the  explanation  for  the  delay  upto  02.11.2006.  

Thereafter, taking into account the statement made in the  

condonation application that  the appeal  has been filed on  

02.11.2006, whereas it was actually filed on 08.11.2006, the  

High  Court  refused  to  condone  the  delay  of  the  period  

between the two dates i.e. six days.  Reading the relevant  

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paragraph of the condonation application it is obvious to us  

that  there  is  an  apparent  error  or  mix  up  in  the  dates  

furnished by the State in its application for condonation of  

delay.  The mention of the date 2.11.2006 in para 5 of the  

condonation application is by hand.  Obviously it is an error  

occasioned  by  inadvertence.   The  date  that  should  have  

been  mentioned  is  8.11.2006  and  not  2.11.2006.   The  

inadvertence  or  even  if  the  above act  is  construed  to  be  

negligent,  in  our  considered  view,  cannot  be  sufficient  to  

justify a refusal of the adjudication of the appeal filed by the  

State  on merits  which is  the ultimate  consequence of the  

impugned order.  Taking into account the totality of the facts  

of the case,  particularly the period of the delay, we are of  

the view that in the present case, the High Court should have  

condoned the delay.  The same not having been done we  

deem it appropriate to allow the appeal and set aside the  

order dated 12.11.2008 passed by the Division Bench of the  

High Court; condone the delay that had occurred in filing of  

D.B. Special Appeal  Writ No.02033 of 2007 and remit the  

matter back to the High Court for disposal on merits.  We  

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make it clear that we have not expressed any opinion on the  

merits of the case of the parties before us.

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

..………………………..………………………J.                                [RANJAN GOGOI]                     

NEW DELHI SEPTEMBER 16, 2013

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