State of M.P. and Another and Adv A.G vs Mohammad Suleman Khan and Others

Anil Sharma, Judge

Heard on M(C)P No. 1326/2004, which is an application u/s 5 of Limitation Act for condonation of delay of 375 days in filing the appeal on the ground that earlier permission for filing the appeal has been refused by the law department and thereafter again when permission was sought for filing the appeal, same has been granted and thus delay has been occurred in following the process for appeal. The order against which this appeal has been filed is an order dismissing the application of the State filed u/s 5 of Limitation Act alongwith the appeal in the lower appellate Court. The impugned order dated 9/4/2003 has been passed in MJC No. 47/99 and the Collector, Gwalior has written a letter for permission to file appeal for the first time on 8/9-7-2004 i.e. after more than one year and three months and there is no explanation for this period. Even no order regarding permission for appeal has been submitted alongwith the application for condonation of delay.

Learned counsel for the State has cited the judgment of Hon. Apex Court in the matter of Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, in which it has been held that transaction of business of Government being done leisurely by officer who had no or evince no personal interest at different levels, insistence upon explaining every day''s delay by Court would be improper and such adoption of strict standard of proof leads to grave miscarriage of public interest.

But here in this case, if the process would have been started within limitation then certainly appellants/State could have been given benefit of judgment cited above but the process for permission to file appeal has been started after lapse of one year and three months for which no explanation has been given and Collector was represented in civil suit, therefore, it cannot be assumed that he had no knowledge of passing of judgment against the government and seriousness of officers can be seen from the fact that in the lower appellate Court, they have also filed an appeal after lapse of 2 years, 5 months and 13 days. Although there is dispute regarding impugned decree in which it has been found that area of land "60 bigha" has been converted into "160 bigha" but it is undisputed that area "60 bigha" is the correct area, therefore, judgment should be read as in relation to area "60 bigha" only for which there is no dispute that impugned decree has been passed by the learned trial Court. There is no reason assigned for delay in obtaining the permission to file appeal for a period of one year 3 months after passing of impugned order by learned lower appellate Court and in the absence of explanation for the same, application u/s 5 of Limitation Act being M(C)P No. 1326/2004 cannot be entertained and same is hereby dismissed. Consequently, the appeal is also dismissed.