ESHA BHATTACHARJEE Vs MG.COMMIT.OF RAGHUNATHPUR NAFAR ACAD.&OR
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-008183-008184 / 2013
Diary number: 23771 / 2011
Advocates: KUNAL CHATTERJI Vs
AVIJIT BHATTACHARJEE
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8183-8184 OF 2013 (Arising out of S.L.P. (C) Nos. 24868-24869 of 2011)
Esha Bhattacharjee ... Appellant
Versus
Managing Committee of Raghunathpur Nafar Academy and others ...Respondents
J U D G M E N T
Dipak Misra, J.
1. Leave granted in both the special leave
petitions.
2. The singular question that we intend to
address in these appeals, by special leave, is
whether the Division Bench of the High Court
of Calcutta is justified in entertaining the CAN
No. 365 of 2011 for condoning the delay of
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2449 days in A.S.T.A. No. 10 of 2011
preferred against the interim order dated
25.2.2004 passed by the learned single Judge
in W.P. No. 6124(W) of 2004. It is also worthy
to note that the Division Bench in A.S.T.A No.
10 of 2011 in A.S.T. No. 13 of 2011 had
directed stay of further proceedings in
connection with A.S.T. No. 346 of 2004.
Needless to say, the said order is
consequential as whole thing would depend
upon the issue pertaining to condonation of
delay.
3. Sans unnecessary details, the facts which are
essential to be stated for the purpose of
disposal of the present appeals are that the
appellant, an Assistant Teacher in language
group (Bengali), invoked the jurisdiction of
the High Court under Article 226 of the
Constitution by preferring a writ petition
seeking approval of her appointment and for
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certain other reliefs. The learned single
Judge on 25.2.2004 taking note of the
submissions of the learned counsel for the
petitioner therein and further noticing the
fact that in spite of notice none had appeared
on behalf of the concerned respondents,
issued a direction that during the pendency
of the application the services of the
petitioner as Assistant Teacher in Bengali in
Raghunathpur Nafar Academy (HS) at
Abhoynagar in the district of Howrah shall not
be disturbed until further orders. As the said
order was not complied with, the appellant
filed the contempt application being C.P.A.N.
No. 1016 of 2004. Be it noted, learned
counsel for the petitioner communicated the
order to the school authorities but the said
communication was not paid heed to. On
24.1.2006 the District Inspector of Schools
(SE), Howrah, directed the said school
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authorities to comply with the direction
issued by the learned single Judge. Despite
the said direction the order was not complied
with. It may be mentioned here that an
undertaking was given before the learned
single Judge and on that basis C.P.A.N. No.
1016 of 2004 was disposed of. As the factual
matrix would further unfurl a new managing
committee was constituted in place of the
erstwhile managing committee of the school
on 21.11.2009 and the appellant was not
allowed to join her duty. Being constrained,
she preferred another contempt petition No.
C.P.A.N. No. 1506 of 2010 wherein the
learned single Judge vide order dated
13.5.2010 referred to his earlier order and
directed that the District Inspector of Schools
(SE) would ensure due compliance of the
order. That apart, a direction was issued that
the concerned police authority should see to
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it that the Secretary and the teacher-in-
charge of the concerned school implement
the order in allowing the petitioner to join her
duties. After the said order came to be
passed, the appellant herein joined her duties
as Assistant Teacher with effect from
14.6.2010. Though the appellant was
allowed to join, yet she was neither permitted
to sign the daily attendance register, nor
allotted any work nor paid her salary. Being
impelled, she filed an application for
contempt, C.P.A.N. No. 1506 of 2010, and on
24.12.2010 the learned single Judge directed
for personal presence of the Secretary and
teacher-in-charge of the school. At this
juncture, the Managing Committee and the
Secretary of the school preferred an appeal
along with an application for condonation of
delay. The said application was seriously
resisted by the appellant by filing an affidavit
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and, eventually, by the impugned order the
Division Bench condoned the delay. Be it
noted, the Division Bench has also passed an
interim order of stay. The said orders are the
subject-matter of assail in these appeals by
special leave.
4. We have heard Mr. Kunal Chatterjee, learned
counsel for the appellant, Mr. Anip Sachthey,
learned counsel for respondent No. 1 and Mr.
Sarad Kumar Singhania, learned counsel for
the respondent Nos. 3 to 5.
5. Before we delve into the factual scenario and
the defensibility of the order condoning
delay, it is seemly to state the obligation of
the court while dealing with an application for
condonation of delay and the approach to be
adopted while considering the grounds for
condonation of such colossal delay.
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6. In Collector, Land Acquisition, Anantnag
and another v. Mst. Katiji and others1, a
two-Judge Bench observed that the
legislature has conferred 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,
for that is the life-purpose for the existence of
the institution of courts. The learned Judges
emphasized on adoption of a liberal approach
while dealing with the applications for
condonation of delay as ordinarily a litigant
does not stand to benefit by lodging an
appeal late and refusal to condone delay can 1
(1987) 2 SCC 107
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result in an meritorious matter being thrown
out at the very threshold and the cause of
justice being defeated. It was stressed that
there should not be a pedantic approach but
the doctrine that is to be kept in mind is that
the matter has to be dealt with in a rational
commonsense pragmatic manner and cause
of substantial justice deserves to be preferred
over the technical considerations. It was also
ruled that there is no presumption that delay
is occasioned deliberately or on account of
culpable negligence and that the courts are
not supposed to legalise injustice on
technical grounds as it is the duty of the
court to remove injustice. In the said case
the Division Bench observed that the State
which represents the collective cause of the
community does not deserve a litigant-non-
grata status and the courts are required to be
informed with the spirit and philosophy of the
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provision in the course of interpretation of the
expression “sufficient cause”.
7. In G. Ramegowda, Major and others v.
Special Land Acquisition Officer,
Bangalore2, Venkatachaliah, J. (as his
Lordship then was), speaking for the Court,
has opined thus:-
“The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd.3 ; Shakuntala Devi Jain v. Kuntal Kumari4 ; Concord of India Insurance Co. Ltd. V. Nirmala Devi5 ; Lala Mata Din v. A. Narayanan6 ; Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on
2 (1988) 2 SCC 142
3 (1962) 2 SCR 762
4 (1969) 1 SCR 1006
5 (1979) 3 SCR 694
6 (1970) 2 SCR 90
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the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.”
8. In O.P. Kathpalia v. Lakhmir Singh (dead)
and others7, the court was dealing with a
fact-situation where the interim order passed
by the court of first instance was an
interpolated order and it was not
ascertainable as to when the order was
made. The said order was under appeal
before the District Judge who declined to
condone the delay and the said view was
concurred with by the High Court. The Court,
taking stock of the facts, came to hold that if
such an interpolated order is allowed to
stand, there would be failure of justice and, 7
(1984) 4 SCC 66
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accordingly, set aside the orders impugned
therein observing that the appeal before the
District Judge deserved to be heard on
merits.
9. In State of Nagaland v. Lipok AO and
others8, the Court, after referring to New
India Insurance Co. Ltd. V. Shanti Misra9,
N. Balakrishnan v. M. Krishnamurthy10,
State of Haryana v. Chandra Mani11 and
Special Tehsildar, Land Acquisition v.
K.V. Ayisumma12, came to hold that adoption
of strict standard of proof sometimes fails to
protect public justice and it may result in
public mischief. 8
(2005) 3 SCC 752
9 (1975) 2 SCC 840
10 AIR 1998 SC 3222
11 (1996) 3 SCC 132
12 (1996) 10 SCC 634
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10. In this context, we may refer with profit to the
authority in Oriental Aroma Chemical
Industries Limited v. Gujarat Industrial
Development Corporation and another13,
where a two-Judge Bench of this Court has
observed that the law of limitation is founded
on public policy. The legislature does not
prescribe limitation with the object of
destroying the rights of the parties but to
ensure that they do not resort to dilatory
tactics and seek remedy without delay. The
idea is that every legal remedy must be kept
alive for a period fixed by the legislature. To
put it differently, the law of limitation
prescribes a period within which legal remedy
can be availed for redress of the legal injury.
At the same time, the courts are bestowed
with the power to condone the delay, if
sufficient cause is shown for not availing the 13
(2010) 5 SCC 459
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remedy within the stipulated time.
Thereafter, the learned Judges proceeded to
state that this Court has justifiably advocated
adoption of liberal approach in condoning the
delay of short duration and a stricter
approach where the delay is inordinate.
11. In Improvement Trust, Ludhiana v.
Ujagar Singh and others14, it has been held
that while considering an application for
condonation of delay no straitjacket formula
is prescribed to come to the conclusion if
sufficient and good grounds have been made
out or not. It has been further stated therein
that each case has to be weighed from its
facts and the circumstances in which the
party acts and behaves.
12. A reference to the principle stated in
Balwant Singh (dead) v. Jagdish Singh
14 (2010) 6 SCC 786
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and others15 would be quite fruitful. In the
said case the Court referred to the
pronouncements in Union of India v. Ram
Charan16, P.K. Ramachandran v. State of
Kerala17 and Katari Suryanarayana v.
Koppisetti Subba Rao18 and stated thus:-
“25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing
15 (2010) 8 SCC 685
16 AIR 1964 SC 215
17 (1997) 7 SCC 556
18 (2009) 11 SCC 183
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sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.”
13. Recently in Maniben Devraj Shah v.
Municipal Corporation of Brihan
Mumbai19, the learned Judges referred to the
pronouncement in Vedabai v. Shantaram
Baburao Patil20 wherein it has been opined
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 19
(2012) 5 SCC 157
20 (2001) 9 SCC 106
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consideration arises. Thereafter, the two-
Judge Bench ruled thus: -
“23. What needs to be emphasized 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 is consumed at various stages of litigation apart from the cost.
24. 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.” Eventually, the Bench upon perusal of the application
for condonation of delay and the affidavit on record came to
hold that certain necessary facts were conspicuously silent
and, accordingly, reversed the decision of the High Court
which had condoned the delay of more than seven years.
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14. In B. Madhuri Goud v. B. Damodar
Reddy21, the Court referring to earlier
decisions reversed the decision of the learned
single Judge who had condoned delay of 1236
days as the explanation given in the
application for condonation of delay was
absolutely fanciful.
15. From the aforesaid authorities the
principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing
with an application for condonation of delay, for
the courts are not supposed to legalise injustice
but are obliged to remove injustice.
(ii) The terms “sufficient cause” should be understood
in their proper spirit, philosophy and purpose
regard being had to the fact that these terms are
21 (2012) 12 SCC 693
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basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal
the technical considerations should not be given
undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the
part of the counsel or litigant is to be taken note
of.
(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant
fact.
(vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause
public mischief because the courts are required to
be vigilant so that in the ultimate eventuate there
is no real failure of justice.
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(vii) The concept of liberal approach has to encapsule
the conception of reasonableness and it cannot be
allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to
the former doctrine of prejudice is attracted
whereas to the latter it may not be attracted. That
apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as
the fundamental principle is that the courts are
required to weigh the scale of balance of justice in
respect of both parties and the said principle
cannot be given a total go by in the name of
liberal approach.
(x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the
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courts should be vigilant not to expose the other
side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by
taking recourse to the technicalities of law of
limitation.
(xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on
the paradigm of judicial discretion which is
founded on objective reasoning and not on
individual perception.
(xiii) The State or a public body or an entity
representing a collective cause should be given
some acceptable latitude.
16. To the aforesaid principles we may add
some more guidelines taking note of the
present day scenario. They are: -
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(a) An application for condonation of
delay should be drafted with careful concern
and not in a half hazard manner harbouring the
notion that the courts are required to condone
delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to
justice dispensation system.
(b) An application for condonation of
delay should not be dealt with in a routine
manner on the base of individual philosophy
which is basically subjective.
(c) Though no precise formula can be laid
down regard being had to the concept of judicial
discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory
system should be made as that is the ultimate
institutional motto.
(d) The increasing tendency to perceive
delay as a non-serious matter and, hence,
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lackadaisical propensity can be exhibited in a
non-challant manner requires to be curbed, of
course, within legal parameters.
17. Presently to the assertions made in the
application for condonation of delay and the
asseverations in oppugnation of the same. It
may be stated here that the Division Bench
while dealing with the application for
condonation of delay has also adverted to the
legal tenability of the interim order in a
matter of appointment and approval of a
teacher, and condoned the delay. It does not
require Solomon’s wisdom to perceive that
the delay was colossal. In the application for
condonation of delay the appellant before the
High Court had stated about the
circumstances in which the order came to be
passed by the learned single Judge, the order
in the earlier contempt petition and the
second petition for contempt, the extinction
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of right of the respondent employee to
continue in the post and thereafter
proceeded to state the grounds for
condonation of delay. We think it apposite to
reproduce the grounds: -
“14. That from the record it appears that the order impugned was communicated to the then managing committee including the head master in question and the said fact is totally unknown to the newly elected managing committee as they have been elected on 20.9.2009 and they have been handed over charge on 21.11.09 and to the teacher in charge who has been handed over charge on 1.3.10. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the Ld. Advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over the brief from Mr. Banik, Ld. Advocate to Mr. Baidya, Ld. Advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 07.06.2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application.
15. Having got no other alternative applicant have been advised to prefer an appeal without certified copy and the leave has been prayed for and the same was allowed.
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The photocopy of the receipt for application of Xerox certified copy is annexed herewith and marked with letter “A”.
16. That the delay occasioned in presenting the said mandamus appeal has taken place due to the aforesaid reasons which was beyond the control of the applicants and was completely unintentional.”
18. Thereafter, the applicant therein stated
about the duty of the court while dealing with
the application for condonation of delay and
in that context, proceeded to state as follows:
-
“Nonetheless adoption of strict standard of proof may lead to grave miscarriage of public justice apart from resulting in public mischief by skilful management of delay in the process of filing the appeal, the appellants/applicants do not stand to benefit from the delay of about 2449 days occasioned in preferring the said Mandamus Appeal, nor it is a fact that the writ petitioners/ respondents will be immense/prejudiced if such non-deliberate delay is not condoned. There has not been deliberate delay as would be evidenced from the foregoing paragraphs. Refusing to condone such non-deliberate delay may result in meritorious matters like the instant case, being thrown out at the very threshold and the cause of justice being defeated. As against this when delay is condoned the highest that can happen in the instant case is that a cause would be decided on merits after hearing the parties.”
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19. The said grounds were opposed by the
contesting respondent therein by stating,
inter alia, that the school authorities were
very much aware of the order dated
25.2.2004 as the same was communicated to
them by her counsel as well as by the District
Inspector of school. That apart, an
undertaking was given before the learned
single Judge by the managing committee.
Quite apart from above, in any case, the new
managing committee that had come into
being in 2009 was aware of the order but it
chose not to assail the order till there was a
direction for personal appearance of the
Secretary and the teacher-in-charge. It was
further put forth that the grounds urged did
not justify condonation of such enormous
delay and the plea of prejudice was not at all
tenable.
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20. On a perusal of the grounds urged in the
affidavit and the stand put forth by the
respondents herein for condonation of delay
are that they were not aware of the order
passed by the learned single Judge till they
received the notice of the contempt
application and thereafter because of
miscommunication between the counsel and
the parties no steps could be taken and,
eventually, an application for vacation of stay
was filed and thereafter, the appeal was
preferred. That apart, it has been urged that
if delay is not condoned there will be great
miscarriage of public justice resulting in
public mischief and cause of justice would be
defeated if the meritorious matter like the
present one is thrown at the threshold. The
Division Bench of the High Court took note of
the averments made in paragraph 14 of the
application and thereafter, noted the
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submission of learned counsel for the parties,
referred to the decision in Oriental Aroma
Chemical Industries Limited (supra) and
came to hold as follows: -
“Now upon a close look at the prayer made for condonation of delay we find that although the delay is substantial, the same has been sought to be explained in a manner even if it may not be full proof but is quite convincing.”
21. Barring the aforesaid, most of the
discussion pertains to the merits of the case.
We are of the convinced opinion that the High
Court has misdirected itself by not
considering certain facts, namely, (a) that the
notice of the writ petition was served on the
earlier managing committee; (b) that the
earlier committee had appeared in the writ
court and was aware of the proceedings and
the order; (c) that the District Inspector of
schools had communicated to the managing
committee to comply with the order of the
learned single Judge; (d) that the earlier
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managing committee had undertaken before
the learned single Judge to comply with the
order; (e) that the new managing committee
had taken over charge from the earlier
managing committee; (f) that nothing has
been indicated in the affidavit that under
what circumstances the new managing
committee, despite taking over charge, was
not aware of the pending litigation or for that
matter the communication from the District
Inspector; (g) that the writ court was still in
seisin of the matter and no final verdict had
come and hence, it would not be a case
where there will be failure of justice if the
appeal against the interim order is not
entertained on the ground of limitation
inasmuch as the final order was subject to
assail in appeal; (h) that the managing
committee had exhibited gross negligence
and, in any way, recklessness; (i) that the
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conduct and attitude of the members of the
committee before the writ court deserved to
be decried since they should not have taken
recourse to maladroit effort in complying with
the order of the court; and (j) and that it was
obvious that the managing committee was
really taking resort to dilatory tactics by not
seeking necessitous legal remedy in quite
promptitude.
22. At this juncture, we are obliged to state
that the persons who are nominated or
inducted as members or chosen as
Secretaries of the managing committees of
schools are required to behave with
responsibility and not to adopt a casual
approach. It is a public responsibility and
anyone who is desirous of taking such
responsibility has to devote time and act with
due care and requisite caution. Becoming a
member of the committee should not become
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a local status syndrome. A statutory
committee cannot remain totally indifferent
to an order passed by the court and sleep like
“Kumbhakarna”. The persons chosen to act
on behalf of the Managing Committee cannot
take recourse to fancy and rise like a phoenix
and move the court. Neither leisure nor
pleasure has any room while one moves an
application seeking condonation of delay of
almost seven years on the ground of lack of
knowledge or failure of justice. Plea of lack of
knowledge in the present case really lacks
bona fide. The Division Bench of the High
Court has failed to keep itself alive to the
concept of exercise of judicial discretion that
is governed by rules of reason and justice. It
should have kept itself alive to the following
passage from N. Balakrishnan (supra): -
“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
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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.”
We have painfully re-stated the same.
23. Ex consequenti, the appeals are allowed
and the order passed by the Division Bench
condoning delay is set aside. As a result of
such extinction the appeal before the Division
Bench of the High Court shall also stand
dismissed. The learned single Judge is
requested to dispose of Writ Petition No.
6124(W) of 2003 as expeditiously as possible,
preferably, within a period of six months as
the lis involved is not likely to consume much
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time. In the facts and circumstances of the
case, there shall be no order as to costs.
……………….……….J. [Anil R. Dave]
……………….……….J. New Delhi; [Dipak Misra] September 13, 2013.