Allahabad Development Authority and Another vs Saffuddin and Others

This is an application under Order IX, Rule, 9 C.P.C. read with Order XLI Rule 19 C.P.C. filed by the appellants against an order dated 30792 passed by a Division Bench consisting of two Hon''ble Judges, including one of us (Justice G.S.N. Tripathi), whereby the appeal was dismissed as being insufficiently stamped. The aforesaid First Appeal was directed against the judgment and order dated 14391 passed by Sri Oudho Singh, the then Xth Addl. District Judge, Allahabad in Land Acquisition Reference No. 124 of 1988, whereby the learned Xth Addl. District Judge gave an award evaluation the disputed land @ 150 per square meter. He also awarded interest @ Rs. 12% from the date of taking possession (251086). Other interests were allowed under the provisions of Land Acquisition Act. This appeal was filed on 18991. The Stamp Reporter reported on 19991 that a Courtfee of Rs. 7,21,207 was due on the memo of the appeal. Other technical defects were as follows:

(a) Second Judge''s copy is wanting

(b) Parties are not properly described.

But these objections are not res Integra in the present application before us. The only relevancy is that the deficient Courtfee as reported, was not paid at all till 30792, practically 10 months after the defect was pointed out by the Stamp Reporter. The appeal was filed after paying the only Court fee of Rs. 10/. Basically this is the order dated 30792, which is sought to be set aside by way of this application. The application for setting aside the aforesaid exparte order dated 30792 was moved for the first time on 2996 along with an application and affidavit for condoning the delay.

The appeal had been filed by Sri Jitendra Nath Sharma, Advocate, Counsel for the appellants. His Vakalatnama is on the record of the said appeal. It is further alleged that inadvertently the clerk of Sri U.N. Sharma, Advocate could not note the date of 30792. Therefore, he could not inform the counsel with the said state of affairs. Therefore, the appeal was dismissed for want of Courtfee despite humble request by Sri J.N. Sharma, another Counsel of the panel of the Allahabad Development Authority (hereinafter referred to as A.D.A.). Meanwhile an application for dismissal of the First Appeal was also moved by Sri U.N. Sharma on behalf of the appellant. But this Court did not accept that contention of Sri Sharma and passed the following order on 30792:

"List has been revised. None is present for the appellant. Sri D.P. Singh appeared on behalf of the respondents. There is no ''Vakalatnama of Sri J.N. Sharma on behalf of the appellant, hence petitioner has no right to move this application for dismissal of the First Appeal as withdrawn. Application is rejected. On 189 91, the appeal was filed with deficiency in Courtfee of Rs. 7,21,207. This deficiency has not been made so far. Appeal is rejected for want of sufficient Court fee."

It was further urged that due to the said mistake on the part of the clerk of Sri U.N. Sharma, Advocate, the order of this Court dated 30792 escaped notice of the appellant for a long time, as the file of the case in the office of the appellant, was misplaced and Sri U.N. Sharma had resigned. It was further alleged that this mistake was recently noticed in the third week of August, 1996 in the office of the appellant and accordingly the application for setting aside the order dated 30792 was moved on 2996. Thus there was sufficient justification for moving the application with so much delay. The appellant also wants to make good the deficiency, amounting to Rs. 7,21,207.

It is also pertinent to note that an application for execution of the order of the Xth Addl. District Judge was filed in the Civil Court and the decretal amount was sought to be recovered from the property of the State Government as well as the appellant. An order to that effect was passed on 121295 and then the slumber of the appellants ended. An affidavit to that effect has been filed by Sri S.P. Singh, Law Officer of the appellant A.D. A. and a prayer was made that recovery proceedings may be stayed pending before the Xth Addl. District Judge.

It is further relevant to note that an application was moved by the appellant through its Counsel Sri U.N. Sharma with a prayer that the appeal may be dismissed as withdrawn. The main ground for this contains in paragraph 3 of the affidavit filed by Sri S.K. Jaiswal, Dy. Secretary, Allahabad Development Authority. It is as follows:

"That due to deficiency of Courtfee the aforesaid appeal was not taken up by this Court. In the meantime a review petition has been filed before the Xth Additional District Judge, Allahabad against the order dated 14391 in Land Acquisition Reference No. 124/1988."

However, this Court did not concede this request and passed an order as mentioned in paragraph 2 of this judgment.

Respondent No. 1 Sri Saifuddin filed his affidavit dated 810 96 against the application for setting aside the order dated 30 792. He has urged that the ground taken that the clerk of the Counsel could not note the case in the causelist, is not correct. It is pertinent to state that an application for withdrawing the appeal, supported by an affidavit of Sri S.K. jaiswal, Dy. Secretary, A.D.A., was filed through Sri J.N. Sharma, Counsel for the appellant. Nay, there was no request for extending time for payment of Courtfee. Subsequently a review application was filed before the Xth Addl. District Judge, Allahabad to review his order, which has been impugned before this Court, being review Petition No. 47 of 91. In the Review Petition, an objection was filed on behalf of the respondents that the appellant (A.D.A.) had already filed an appeal before the High Court against the judgment and decree dated 14391, and as such, the review application was not maintainable.

In the counteraffidavit of Sri Farooq Sharafuddin in para 4, it has been stated that in the rejoinder affidavit filed by appellant, the stand taken was that the application for withdrawing the appeal has been made and the same is supported by an affidavit, which has been filed in the High Court, vide Annexure R.A.I and R.A. II to the said rejoinder affidavit. In that review petition, the respondent had filed the copy of the order dated 30792 supra. On the list of documents, the respondents'' Counsel endorsed as "seen". The review petition was dismissed on 3994. The execution proceedings were going on during the pendency of the review petition itself. After dismissing the review petition, an order dated 121295 was passed by the executing Court for attaching the account of the Collector in the treasury. This case was being contented tooth and nail by the respondents in the executing Court. Under these circumstances, it is wrong to say that the order dated 30792 escaped the notice of the appellant because on 15193, the fact that an order was passed on 30792, was communicated by the respondent to the appellants'' Counsel (C.A. 2). Hence the allegation that the file was lost, is not correct. The ground for condoning the delay has been created for the purposes of the case and it is not a true statement. The present application has been filed for delaying the execution for realising the decretal amount.

In the Annexure C.A. 1, Sri Prakash Singh, Law Asstt. to the appellant, A.D.A. in paragraph 12, has admitted that an incompetent appeal was no doubt filed without paying the requisite Courtfee and an application along with an affidavit has been moved before the High Court for withdrawal of the same. In paragraph 15, it is alleged that the appellant, A.D.A. is a corporate body and its officers are public officers and, therefore, for taking any recourse of law, a detailed enquiry is being made and in such cases some delay is bound to be caused. But this delay cannot be said to be deliberate delay. The application for dismissing the appeal as withdrawn, was moved by Sri U.N. Sharma, which is annexed to the rejoinder affidavit of. Sri S.P. Singh aforesaid.

Thus the sole ground for seeking withdrawal as contained in paragraph 3 of the affidavit of Sri Jaiswal supra is that since an application for review had been pending, therefore, the prayer for dismissing the appeal as withdrawn was moved. It is also relevant to note that it has not been disputed that in the review petition, the copy of the order dated 30792 passed by this Court was filed by the respondent No. 1 Sri Saifuddin as contained in paragraph 4 of the affidavit of Sri Saifuddin. It has been simply denied. In the rejoinder affidavit of Sri S.P. Singh, in paragraph 5, it has been simply said that the contents of paragraph 4 of the affidavit need no comment. This point has not been met at all by the respondent.

When the matter was taken up on 21497, the learned Counsel for the respondents pointed out that in paragraph 9 of the memo of the appeal it has been mentioned that assuming that the claimant was entitled to compensation, the State being the owner and the claimant havingsubordinate title of either of lessee or licencee, was not entitled to claim more than l/3rd of the total compensation awarded. Therefore, it was urged that even according to the admission contained in paragraph 9 of the memo of appeal, the respondents were entitled to at least l/3rd of the total compensation and this amount, at least, should be paid by the appellant before an application to recall the order dated 30792 was heard.

When it was pointed out to Sri J.N. Sharma, Advocate on 214 97, he agreed to pay at least l/3rd of the total decretal amount. But for that, he would seek permission of his client and hence the matter was ordered to be put up on 22497. The matter could not be taken up earlier. But it was taken up on 2597. On that date, Sri B.B. Paul, learned Senior Counsel appeared on behalf of the appellant. Sri J.N. Sharma stated on 2597 that he was no longer the Counsel of the appellant in this case. The order dated 21497 contains admissions. Therefore, he would give his wellconsidered reply through his personal affidavit on 6597. But again Sri Sharma did not turn up nor he has filed any reply or any affidavit.

12, We have heard learned Counsel for the parties at stretch and gone through the record.

Coming to the legal position, our attention has been invited to the judgment of the Hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag & another v. Mst. Katiji & others AIR 1987 SC 1353. In that case there was only 4 days'' delay and the High Court rejected the application under Section 5 Limitation Act. But the Hon''ble Supreme Court while up turning down the said judgment laid down certain principles byway of illustration as to how a liberal approach is to be adopted and the principles involved therein. In paragraph 3 of the judgment, the Hon''ble Supreme Court had come to the conclusion "Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay." Therefore, that case on merits itself deserved proper consideration, specially, when the Hon''ble Supreme Court has put its seal by Observing that "we are satisfied that sufficient cause exists for the delay." No more can be said, so far the present case is concerned. It is quite different. There can be no objection to the principle of showing liberal approach in such matters.

Another ruling relied upon by the appellants is G. Ramegowda v. Special Land Acquisition Officer, Bangalore A.I.R. 1988 S.C. 897. In that case the delay of about one year was involved and the High Court condoned it. The other party went in appeal before the Hon''ble Supreme Court. The specialty of that case was stated in paragraph 6 of the judgment, which is as follows:

"I beg to submit that due to the unusual conduct of the District Government Pleaders who were in office during a particular period Government had to face the problem of delay in filing of appeals in hundreds of cases. The Government was not able to know the real state of affairs till the concerned Government Pleaders relinquished their office. In fact, for some time, there was utter confusion and it became practically impossible to find out as to which are the Land Acquisition cases which had been disposed of and in which appeals were not filed though appeals ought to have been filed.....It is humbly submitted that the case of the Government for condonation of delay was that on account of the fraud played by the concerned Government Pleaders delay in filing the appeals has occurred and more than a crore of rupees would be a loss to the Government on account of the said fraud played by the Government Pleaders. In fact, in numerable cases the Hon''ble High Court has condoned the delay in filing of the appeals, talking into consideration the most unusual conduct of Government Pleaders, which had landed the Government in difficulties. I beg to further submit that almost all the appeals which had been entertained by the Hon''ble High Court after condoning the delay have been allowed on consideration of their merits."

In paragraph 7, the Hon''ble Supreme Court has observed as follows:

"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 fides on the part of the party or its Counsel there is no reason why the opposite side should be exposed to a timebarred 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. In Katiji''s case (supra), this Court said:

"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 nondeliberate delay."

It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds by because it is capable of removing injustice and is expected to do so."

There were very serious allegations against the Government Counsel, who was incharge of the case and it was alleged that he played fraud upon the Government. Taking all these factors into consideration, the Hon''ble Supreme Court upheld the judgment of the High Court Therefore, the facts of that case before their Lordships, were quite different and the view, which was taken on the philosophy of liberal approach, cannot be taken exception to.

Applying those principles to the case before, us, we find that there has been given absolutely no explanation for the delay rather, the evidence on the record shows that, infact, the delay was not casual and negligent, but articulate and intentional. Nay, on the instructions of the appellant, the learned Counsel work and play their roles. There is still no allegation against the integrity of the Counsel doing pairvi on behalf of the appellant in the appeals, which were filed with delay and prima facie there does not appear any plausible explanation for that delay. However, that matter is not before us in the present petition.

The appellants had the knowledge of the fact that the District Court had passed the judgment against them on 14391 in L.A. Reference No. 124/78, Saifuddin and Others. v. State of UP. and Others. After obtaining copy etc., the appeal was filed by the State on 18991. Not only this, the appellants filed a review petition before the Xth Addl. District Judge, Alld., being Review Application No. 37/91, vide C.AI. necessarily after filing the appeal. In that review petition, the respondents filed an objection. It was alleged by the respondents that AD.A had filed the appeal in the High Court against the judgment and decree dated 14391 and as such, the review application was not maintainable. In the rejoinder affidavit filed by the A.D.A, the stand taken was that the application for withdrawing the appeal had been made and the application of withdrawal supported by the affidavit, which was filed in the High Court, alongwith Annexure Nos. R. A1 and R. A 2 to the said rejoinder affidavit. The order of the High Court dated 30792 dismissing the appeal for want of Courtfee, has been passed on 30792. It has been alleged by the respondents that the copy of the order dated 30792 was filed by them in review petition, as per list 28C. On that list, an endorsement of ''seen'' was made by the Counsel for the AD.A (C.A 2). The Review Petition was dismissed on 3994. The execution proceedings were going on during the pendency of the Review Petition. After dismissal of the Review Petition, an order dated

121295 was passed in the Execution Case filed by the respondents for attachment of the account of the Collector in the treasury (C.A 3). The case was contested tooth and nail before the Xth AddL Distt. Judge, but the order dismissing the Review Petition was passed. All these allegations have been made in paragraph 4 of the counteraffidavit filed by the respondent Farooq Sharafuddin (respondent No. 2).

Rejoinder affidavit on behalf of Sri S.P. Singh, Law Asstt., A.D.A. was filed in this Court. Regarding all these allegations made in paragraph 4 as above, in para 5 of the affidavit of Sri Singh, it has been simply said "that the contents of para 4 of the affidavit need no comment.11 Thus nobody has taken courage to deny the allegations made in paragraph 4 supra. Not only this, the High Court''s order dated 30792 was filed by the respondents on 15193. The State Counsel had noted therein as "seen". It means that the order dated 30792 was in the knowledge of the appellants all along and the appeal itself had been filed on 18 991 by the Counsel for the appellants through Sri J.N.Sharma.

In paragraph 5 of the affidavit of Sri S.P. Singh filed alongwith the application dated 28397, it has been alleged "as soon as the said fact (order dated 30792) came to the notice and knowledge of the appellant, the appellant Allahabad Development Authority, Allahabad filed restoration application for setting aside of the said ex pane order of this Hon''ble Court dated 307 92 and that on the said restoration application, on 4919%, the Hon''ble Mr. Justice Om Prakash and Hon''ble Mr. Justice R.K. Singh have ordered issuance of notice to the said respondents." Meanwhile the attachment order was already passed by the executing Court on 14391 by the Xth Addl. Distt. Judge, Alld. Thus the appellants have not been able to prove to the satisfaction of this Court that an order dismissing the appeal on 30792, was not known to them.

In fact, the game of the appellants was to move the appeal with deficient Court fee and keep the same pending and in the meanwhile they were trying their luck by filing the Review Petition before the trial Court. But when that was dismissed on 3994, the appellants again went in deep slumber and no application was moved before this Court to set aside the order dated 30792, although they had knowledge of it. Nay in the Review Petition itself the respondents had made them known by filing this Court''s order dated 30792. That was shown to the counsel for the appellants, vide paper No. D.A. 2. But they did not act despite that. Meanwhile in the execution proceedings, the order for attachment was passed by the XIIIth Addl. Distt. Judge, Alld., who wrote a letter to the Chief Treasury Officer, Allahabad under Order 21 Rule 52 C.P.C. for attachment of 1,45,79,406. Then the appellants were awakened. The District Magistrate, Alld. wrote a letter dated 251096 (Annexure II) to the Restoration Application) to the Vicepresident, A.D.A., Alld. making a request that a sum of Rs. 160 lakhs be made available to the Special Land Acquisition Officer so as to save from the attachment order passed by the trial Court. Again on 71297, the District Magistrate wrote another letter to the Commissioner, Allahabad Division, Allahabad requesting him to issue an order for release of Rs. 160 lakhs to the A.D.A. (Annexure 3) and this way, the appellant authorities have been playing games. That also demonstrates total entries on the part of the appellants that they have not taken any suitable action for setting aside the order dated 30792 in a proper manner. This way, they do not have any just and correct cause to get the ex pane order set aside.

However, we take inspiration from the case of Collector, Land Acquisition, Anantnag and Another. v. Mst. Katiji and Others. (supra) and the guidelines given at page 1354, para No. 6, which is as follows:

"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 justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."

Further the observations of the Hon''ble Supreme Court in the same paragraph are as follows:

"Infact 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 notemaking, file pushing, and passing on the buck metrics, 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 no 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".

Like the case of G. Ramegowda (supra), we think that since the money belongs to the poor people of the city of Allahabad, who have no say in this appeal, but have genuine interests therein, no doubt, and for the deliberate/grossly negligent conduct of the employees of the appellants, they should not be punished, we want to give another chance to the appellants in order to do justice, with the directions formulated below:

(1) If the appellantpetitioners deposit l/3rd of the total decretal amount as ordered by the learned Xth Addl. District Judge, Allahabad, minus the amount already paid to the respondents, within a period of one week from today, the order dated 30792 passed by this Court dismissing the appeal for nonpayment of Courtfee, shall stand vacated. However, if the appellants fail to do so, the order dated 30792 (supra) shall stand confirmed and the application for restoration dated 20297, shall stand rejected. After the aforesaid amount is deposited within the time prescribed by us, the amount shall be paid to the respondents after taking reasonable security from them.

For a period of one week from today, the execution proceedings pending before the learned Xth Addl. District Judge Allahabad shall remain stayed, which shall become automatically operative after the expiry of the period prescribed above. The appellants shall further be liable to pay cost of Rs. 500 to the respondents in addition to the amount prescribed above.

With the above directions, the present application is allowed.

Application allowed.