Food Corp. of India vs Krishan Kumar

Nirmal Singh, J.—Respondent-Krishan Kumar instituted a suit on 17.10.1995 in the court of Sub Judge, Doda for mandatory injunction

directing the petitioner-Corporation to give employment to his son, namely, Bansi Lal in Class-III/IV category, on the ground that, the Corporation

acquired the land measuring 9 kanals 3 marlas at Khellani for their use on 15.07.1985, whereafter Food Corporation of India constructed a

Godown on the said land.

Notice was served upon the defendants but no body put in appearance and the proceedings under Order 9 Rule 5 CPC were taken and

defendants were proceeded against ex-parte. After recording ex-parte evidence, suit was decreed. Petitioner-Corporation filed application under

Order 9 Rule 13 CPC for setting aside exparte decree. Alongwith application, application u/s 5 of the Limitation Act was also filed. Learned Sub

Judge, Doda after considering objections of respondent, dismissed the application u/s 5 of the Limitation Act as a result of which application under

Order 9 Rule 13 was also dismissed being not maintainable. Thereafter, Food Corporation of India filed Civil Revision No. 56/97, which came up

for hearing on 24.12.1997 and the following order was passed:

During the course of hearing of this revision petition, it transpired that the present revision petition is not maintainable. Faced with this situation, Mr.

J.R. Arora learned Counsel for the petitioner submitted that this revision petition may be disposed of with the observation that the petitioner shall

be at liberty to approach the appropriate forum for such relief to overcome the decree, which has been passed against his client, as may be

permissible under law.

In view of the aforesaid position, this revision petition is dismissed, as not maintainable. However, such dismissal will not be a bar to the petitioner

for approaching the appropriate court for such relief as may be permissible under law. Subject to this, revision petition is dismissed.

The petitioner-Corporation filed appeal, which came up for hearing before the learned Additional District Judge, Doda and same was dismissed

on 08.04.2003. After dismissal of the appeal, the Food Corporation of India sought opinion from their counsel whether it is a fit case for filing

revision. After perusing the file, Mr. W.S. Nargal counsel for the appellant opined that it is not a fit case for filing revision.

The petitioner remained silent for 660 days and with the change of officers and counsel again a decision was taken to file the present revision

petition. Alongwith memo of revision, application for condondation of delay has been filed on the following ground, which has been referred in

paragraph No. 3 of the application:

That the petitioner did not file the revision petition in time as he was advised by the counsel of FCI that there was no sufficient grounds for filing

a revision petition against the order impugned. The applicant/petitioner acted upon the advice of his counsel, so given by him on 06th of August,

2003.

I have heard learned Counsel for the petitioner and perused the record.

u/s 5 of the Limitation Act, delay can be condoned if sufficient cause is shown by the party. The words"" sufficient cause"" have not been defined.

Sufficient cause"" would indicate only a cause or causes, which prevented a litigant from doing a certain thing for reasons for which he is not to be

blamed. The delay can be condoned for the advancement of substantial justice but delay has not to be condoned when the same will cause

hardships to the other party. The delay is also not to be condoned when a litigant is negligent and intentionally and deliberately has not filed the

appeal or revision.

In the instant case as noticed above, after the disposal of the appeal, petitioner-Corporation sought opinion from their legal advisor Mr. W.S.

Nargal, Advocate. He gave the following opinion:

Kindly refer to your communication dated 21.07.2003 by virtue of which your office has desired to file a revision petition against judgment dated

08.04.2003 in case titled Food Corporation of India v. Krishan Kumar (Lal) decided by Addl. Distt. Judge, Doda.

I have gone through the judgment very carefully and accordingly, I am of the view that it is not a case where revision can be filed against the

judgment impugned. The order passed by learned Sub Judge Doda dated 18.10.2001 has been upheld by the Appellate court and rightly so, as,

the order passed by learned Sub judge Doda does not suffer from any illegality, impropriety. The case has been dismissed on the grounds of

limitation and after going through the merits of the case, I do not find that there is any sufficient ground for filing revision against the order impugned

and more so, the limitation period for filing the revision has since lapsed, as, the judgment in question was pronounced way back on 08.04.2003.

Under these circumstances, I am returning the original file for further necessary action at your end.

The petitioner-corporation was fully satisfied with the opinion of Mr. W.S. Nargal, Advocate and had not sought opinion of any other legal

expert. Taking into consideration the advice given by their counsel, the appellant-Corporation had decided not to file the appeal.

At the hearing, it reveals that Sr. Regional Manager and Legal Manger of the Food Corporation of India have been transferred and in their place

new incumbents have taken over. They have appointed legal advisor of their choice and through him, the present revision petition has been filed.

Senior Regional Manager and Legal Manager have not sought permission from the higher authorities for filing present revision petition. It is also not

their case that their predecessors have mis-conducted by not filing the revision against the dismissal of the appeal. It is also not their case that

previous counsel has given the opinion with the connivance of respondent in whose favour suit was decreed or that the opinion was malafide or for

consideration. From the record, it is not revealed what weighed with the authorities to file the present revision petition after 660 days when

competent authority has already taken a decision not to file it.

Respondents filed suit for mandatory injunction directing the appellant to give employment to his son as per circular No. 78 of 1985 issued by

the Food Corporation of India. The petitioner was duly served. Ex-parte proceedings were initiated and after recording evidence of respondent,

suit was decreed. In the memo of revision, it has been mentioned that on having got the knowledge of passing of the ex-parte decree on

08.03.1996 petitioner approached this Court with revision petition, which was dismissed on 24.12.1997. It is also mentioned in the memo of

revision that this Court has observed that order dismissing the revision will not be a bar for the petitioner to approach the appropriate forum for

such relief as may be permissible under law. The petitioner-corporation filed application before Sub Judge, Doda under order 9 Rule 13 for setting

aside exparte decree. In the application, it has been pleaded that the petitioner acquired the knowledge of passing of exparte decree on

29.01.1997 when certified copy of the judgment was furnished to him by the Depot Incharge FCI, Doda who got the same from the court of Sub

Judge, Doda on the directions of the petitioner in the month of January. The respondent in his objections pleaded that the petitioner got the

knowledge of the judgment on 10.07.1996 when copy of the judgment dated 08.03.1996 was served upon it by him through registered post. This

fact has not been controverted by filing rejoinder. Learned Sub Judge, Doda after taking objections of the respondent-decree holder put the case

for leading evidence on behalf of the petitioner. The petitioner was given number of opportunities to support its claim but it failed to do the same

and ultimately evidence was closed vide order dated 13.03.1999 and the application was dismissed. Thereafter, the petitioner filed appeal before

the learned Additional District Judge, Doda which also met the same fate. Even if it is taken that the Food Corporation of India filed civil revision

which also stood dismissed on 24.12.1997 then after the dismissal of the petition, petitioner should have filed application for setting aside exparte

decree or file appeal against that decree within reasonable time. The petitioner remained silent for about six months. There is no explanation from

the petitioner that why the application or appeal was not filed immediately thereafter. After dismissal of the appeal, learned Counsel of the

petitioner-corporation, after taking into consideration the fact that the petitioner has no case for setting aside exparte, gave advise that it is not a fit

case to file the revision petition but despite that present revision petition has been filed.

The Senior Regional Manager and Legal Manager has filed the present petition without taking into consideration the opinion rendered by Mr.

W.S. Nargal, Advocate and their predecessors that it is not a fit case for filing revision. If with the change of officers litigation is generated by the

new incumbents which is vexatious one then there will be no end to the litigation and the courts will have to waste the time which can be utilized for

disposing other cases. In this manner tax payer money will also be wasted in frivolous and vexatious litigation.

In view of above, I am of the opinion that no sufficient cause has been shown for condoning the delay, rather it is vexatious litigation.

Therefore, application for condonation of delay is dismissed with costs of Rs. 10,000/-, which is to be deposited in the Advocates Welfare Fund

as a result of which revision petition also stands dismissed.

Before parting with this order, it is made clear that Petitioner-Corporation is at liberty to recover the amount of costs from the Officer who has

recommended filing of the present revision petition.

Copy of this order be sent to Managing Director of the petitioner Corporation for information.