Food Corporation of India and Others vs Gram Panchayat Bhomaiya

Abhilasha Kumari, J.—RULE. Ms. Renisha R. Vyas, learned Advocate for HL Patel Advocates, waives service of notice of rule, on behalf of the respondent.

1.1 The present petition, filed under Article 227 of the Constitution of India, challenges judgment and order dated 06.10.2007, passed by the 2nd Fast Track Court, Godhra in Civil Miscellaneous Application No. 69 of 2007, whereby the application for condonation of delay, preferred by the respondent, has been allowed.

Briefly stated, the relevant facts of the case, necessary for the decision of the petition are that, the petitioners, Food Corporation of India(plaintiffs before the trial Court), instituted a suit, being Civil Suit No. 94 of 2002, against the respondent Gram Panchayat(Defendant), for recovery of a sum of Rs. 4,38,104/-, which, according to the petitioners, has been recovered by the respondent Panchayat, as octroi tax. The respondent Panchayat put in appearance, but, did not file a written-statement. The suit was decreed in favour of the petitioners, by judgment and decree dated 27.04.2004.

2.1 The respondent filed Civil Miscellaneous Application No. 69 of 2007, for condonation of delay in filing an appeal before the District Court, which has been allowed by the impugned order. Aggrieved thereby, the petitioners have preferred the present petition.

Mr. Shakeel A Qureshi, learned Counsel for the petitioners, has submitted that:

(i) The reasons stated in the application for condonation of delay are not adequate and sufficient cause has not been shown to explain the delay by the respondent.

(ii) The averments in the application that the respondent had no knowledge, about the passing of the decree in the suit, is not supported by any evidence on record. In fact, it is a case of sheer negligence on the part of the respondent and the Court below ought to have considered this aspect and the delay should not have been condoned, as no convincing explanation has been advanced by the respondent.

(iii) The case of the respondent is devoid of merit and the Court below, by passing the impugned order, ought not to have allowed the application, on the ground that it is likely to result in a meritorious matter being thrown out at the threshold.

(iv) The impugned order is unjust and erroneous, being contrary to the factual and legal position, hence deserves to be quashed and set aside.

Ms. Renisha R. Vyas, learned Advocate for HL Patel Advocates for the respondent, has submitted that the order of the District Court is just and proper and has been passed after taking into consideration a division bench judgment of this Court in Union of India and Ors. v. Rameshchandra Joshi reported in 2002 (3) GLR 2332. It is further submitted that by condoning the delay, no prejudice has been caused to the petitioners, and at the most, the matter can be heard on merits. The impugned order has been passed after the trial Court has recorded its satisfaction, regarding the sufficiency of the reasons advanced by the respondent, and has condoned the delay by giving cogent reasons. It is further submitted that costs of Rs. 1,000/- have already been imposed upon the respondent, while condoning the delay, and in view of the principles of law, laid down in the above quoted judgment, the petition may be dismissed.

I have heard learned Counsel for the parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

5.1 As stated in the impugned order, the extent of the delay in preferring the appeal is about 3 years. In the application for condonation of delay filed by the respondent, it is stated that the advocate did not file a written statement, or produce any evidence and as such, the judgment and decree of the trial Court can be said to be an ex parte, one. Moreover, it is stated that the respondent Gram Panchayat was unaware of this state of affairs and of the passing of the decree, until notice dated 13.03.2007 of the executing Court was received by it. It is only thereafter, that steps were taken to challenge the said decree and to make arrangements for the court fees amounting to Rs. 12,750/-. The sum and substance of the grounds for condonation of delay is that the advocate engaged by the respondent, Gram Panchayat, neither filed the written-statement nor produced evidence and the respondent was unaware of the passing of the decree against it. The above explanation given by the respondent in the application, has been found to be satisfactory and convincing, by the trial Court and the delay has been condoned.

5.2 In this context, it would be relevant to take note of the principles of law enunciated by the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, The relevant extract of the said judgment is reproduced hereinbelow:

The legislature has conferred the power to condone delay by enacting Section 51 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 meaning-ful manner which sub serves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

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 non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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.

5.3 Applying the above principles of law to the facts of the present case, it does not transpire that any illegality has been committed by the Court below by condoning the delay. When the Court hearing the application for condonation of delay, has found to its satisfaction, that ''Sufficient Cause'' has been shown to explain the said delay, and has recorded cogent reasons for condonation, this Court, while exercising supervisory jurisdiction cannot act as an appellate Court and go behind the reasons recorded in the impugned order, regarding the sufficiency of the explanation advanced for condoning the delay. The requirement of Section 5 of the Limitation Act is that for condoning the delay, the Court must be satisfied that sufficient cause is shown. The satisfaction of the Lower Appellate Court regarding sufficient cause being shown, has been recorded in the impugned order.

5.4 In this view of the matter, and as the Court below has found sufficient cause to condone the delay, the interference of this Court is not warranted. The Court below has considered all relevant factual and legal aspects and found the explanation given by the respondent for condonation of delay, to be sufficient. The said order is supported by cogent reasons, and costs of Rs. 1,000/- have also been imposed. As the impugned order does not disclose any error of law or jurisdiction, the interference of this Court is not warranted.

For the aforestated reasons, the petition fails, and is dismissed. Rule is discharged.