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Judgment
Abhilasha Kumari, J.—This application has been filed u/s 5 of the Limitation Act for condonation of delay of 180 days (as stated in the application) occasioned in filing the Second Appeal, against judgment dated 03.10.2007 passed in Regular Civil Appeal No. 23 of 1993, by the learned Presiding Officer, 6th Fast Track Court, Gondal, whereby the judgment and decree dated 30.09.1992, rendered in Regular Civil Suit No. 112 of 1985 has been confirmed.
It is submitted by Mr. Mukesh B. Dave, learned advocate for Mr. R.R. Trivedi, learned Counsel for the applicant, that the applicant is the Jetpur Navagadh Nagarpalika (formerly Navagadh Gram Panchayat) and the delay of 180 days in filing the Second Appeal has occurred because there were general elections in the Municipality and there was no competent person to take a decision regarding filing of an appeal as, during that period, the Body of the Municipality had become functus-officio and the Law Committee was not operative. It is further submitted that the Municipality has to place all matters before the General Body and obtain sanction thereupon which also resulted in delay. There is no negligence or inaction on the part of the applicant, who has not abandoned the lis. Moreover, two Engineers, one of whom was advising the Municipality in this regard, were suspended during this period, which contributed to the delay. The applicant has a good case on merits, and as the delay has been sufficiently explained, the application may be allowed.
Mr. A.R. Thacker, learned Counsel for the respondent No. 1 has vehemently opposed the application by submitting that the applicant has not come to the Court with clean hands, inasmuch as it has not been clearly or properly stated in the application, when the general elections took place. In fact, the elections took place on 17.02.2008. Only one officer was placed under suspension and that too, one month prior to the passing of the decree and judgment of the first Appellate Court, so it is obvious that the applicant has not come to this Court with clean hands and has not stated proper and correct facts. In fact, the Law committee met on 03.01.2008, and it cannot be said that the Municipality was not functioning. As the delay has not been sufficiently explained, the application deserves to be rejected.
In support of the above contentions, the learned Counsel for the respondent No. 1 has placed reliance upon a judgment of the Supreme Court in Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another,
Ms. Moksha Thakkar, learned Assistant Government Pleader appearing for respondents Nos. 2 & 3 has fairly stated that the Court may pass appropriate orders, in the facts and circumstances of the case.
No other contention has been raised before this Court by the learned Counsel for the respective parties.
I have heard the learned Counsel for the respective parties, perused the averments made in the application and contents of the other documents on record.
The respondent No. 1 has filed a reply to the application, to which a rejoinder has been filed by the applicant, and a sur-rejoinder has been filed by the respondent No. 1.
The undisputed facts are that the judgment and decree of the first Appellate Court was rendered on 03.10.2007. The certified copy of the same was received by the applicant on 25.10.2007 and the application for condonation of delay has been filed on 16.06.2008, as per the record. In the application, the period of delay is mentioned as 180 days, but as per the record of this Court, it is 153 days. One of the explanations for the delay is contained in Ground-D of the application and reads thus:
(D) Because it may kindly be considered that during the period when delay has occurred there were general election in the Municipality and there was no one to take quick decision in filing the second appeal. Not only this two engineers Mr. Chauhan and Mr. Pagdhar were suspended from the service for various reasons therefore due to this reason some delay has occurred by the Municipality in taking quick decision to file the appeal therefore some delay has occurred in filing appeal which may kindly condoned.
In the affidavit-in-reply, the respondent No. 1 has contended that as the general election of the Municipality was held on 17.02.2008, and during that period the Municipality was functioning, the Body could have taken a decision for filing the appeal and therefore the applicant has suppressed facts and the application should be rejected on this ground. In the rejoinder filed by the applicant, it is stated in paragraph-5 that during the period of delay, there were general elections in the Municipality. It is admitted that the general election was held on 17.02.2008 but it is clarified that the Notification was published on 28.01.2008 and from that date, the Body of the Municipality had become functus-officio, therefore, the Law Committee was not operative from 28.01.2008 and it is only after the election process was over that an appropriate decision to file the appeal could be taken, which factors have contributed to the delay. It is further clarified that one of the engineers, Mr. Chauhan, had been suspended on 03.09.2007, therefore, he could not advice the Municipality in taking a decision to file the Second Appeal. Another engineer, Mr. Pagdhar, was also suspended but was again reinstated, therefore, there is no suppression of material facts and no incorrect facts have been placed before the Court. In the rejoinder filed to the reply, the respondent No. 1 has more or less reiterated the averments made in the reply and has further contended that a meeting of the Law Committee was held on 03.01.2008 and this has not been disclosed by the applicant and a decision could have been taken regarding filing of the appeal.
Having considered the submissions made by the learned Counsel for the respective parties, I am of the considered view that there is no suppression of facts by the applicant, as the reasons advanced by the applicant for explaining the delay have remained the same in the application, though further elaborated, in the rejoinder. It has not been stated in the application that general elections took place during the entire period of delay but it has only been stated in Ground-D, which is reproduced above, that during the period when the delay occurred, there were general elections in the Municipality and that there was no responsible person to take a quick decision regarding filing of the Second Appeal. It has been clarified in the rejoinder that one of the engineers was suspended one month before the judgment and decree of the first Appellate Court was rendered and the other engineer was suspended and thereafter reinstated. By no stretch of the imagination can it be said that the above averments constitute a suppression of material facts. The averments made in the application have been elaborated in detail in the rejoinder. The contention of the learned Counsel for respondent No. 1 that correct facts have not been brought on record, is misplaced. There are other grounds mentioned in the application, apart from the one regarding the general elections, to explain the delay. It is further averred in the application, that being a Public Body, the matter had to be put to the General Body of the Municipality to obtain sanction for filing an appeal and paying the Advocate''s fees. The administrative processes took a long time, and the delay was compounded by the fact that during this period, the general elections took place, and the Law Committee was not functioning. In my considered view, the applicant has shown sufficient cause for the delay, by rendering a credible explanation.
The learned Counsel for the respondent No. 1 has relied on a judgment of the Supreme Court in Pundlik Jalam Patil (D) By Lrs. v. Exe. Eng. Jalgaon Medium Project and Anr. (supra). That case was regarding condonation of delay in filing appeal in a land acquisition matter. The suppression of facts, in that case, was that the respondent had made a statement in the application filed before the High Court that he was unaware about the stand taken by the Special Land Acquisition Officer as well as of the impugned judgment and award, which was found to be an incorrect statement. In the present case, no such incorrect statement or suppression of facts has been made by the applicant. This judgment will, therefore, not be applicable to the facts and circumstances of the present case. There is no force in the contention of the learned Counsel for the respondent No. 1 that the application should be dismissed on the ground of suppression of material facts.
While deciding an application for condonation of delay, the standard test to be applied is the test of ''sufficient cause'', as required by the provisions of Section 5 of the Limitation Act. It is now a settled position of law that every day''s delay need not be explained. This proposition of law has been enunciated in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, wherein the Supreme Court has held as below:
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.
The observations of the Supreme Court, quoted above, have been made in the context of the State Government who was the applicant-appellant before it. The present applicant is a Municipality, which is also a Public Body, discharging public functions, where administrative processes such as obtaining necessary sanction, taking decisions and putting up papers to the General Body result in a certain amount of delay, as has happened in the present case.
The applicant has shown sufficient cause for the delay and it does not appear from the record that there is any inaction or negligence on its part or that the lis had been abandoned at any point of time. The Supreme Court has further held in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. that:
3...The doctrine of equality before law demands that all litigants including the State as litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant praying for condonation of delay. In fact on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos, delay on part of the State 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 non grata status. So also the approach of the courts must be to do even-handed justice on merits in preference to the approach which scuttles a decision on merits....
Taking into consideration the facts and circumstances of the case and examining them in the light of the principles enunciated by the Supreme Court, it transpires that the applicant has rendered a cogent, sufficient and reasonable explanation for the delay. The period of delay, as stated in the application, is 180 days, but according to the Registry of this Court, it is 153 days. Even considering the delay to be 180 days, it is not a gross delay. As the said delay has been sufficiently explained, the application deserves to be allowed. It is, accordingly, allowed. The delay of 180 days (153 as per the Registry) caused in filing the Second Appeal is condoned. Rule is made absolute. There shall be no orders as to costs.