STATE OF RAJASTHAN Vs BAL KISHAN MATHUR(D) TR.LRS..
Bench: SUDHANSU JYOTI MUKHOPADHAYA,RANJAN GOGOI
Case number: C.A. No.-008243-008243 / 2013
Diary number: 20659 / 2009
Advocates: MILIND KUMAR Vs
SHIV SAGAR TIWARI
Page 1
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
1
Page 2
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.
2
Page 3
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
3
Page 4
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
4
Page 5
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
5
Page 6
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
6
Page 7
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
7
Page 8
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
8
Page 9
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
9
Page 10
1
Page 11
11