Syed Gulam Hussain and Others vs The Assistant Commissioner & Land Acquisition Officer and Others

K.N. Phaneendra, J.—Learned Additional Government Advocate takes notice for the respondents.

Heard and perused the records.

The petitioners in all the above cases are the appellants before the First Appellate Court i.e. before the Principal District Judge at Kalaburagi in an unregistered appeals. Those appeals were dismissed for non-payment of Court fee. In order to get those matters restored to the file, the petitioners have filed applications under Order IX rule 4 of CPC r/w Section 151 of CPC along with an application under Section 5 of the Limitation Act. The details of the said Miscellaneous cases are noted in the cause title mentioned above. It appears, the parties have led evidence on the application and the limitation point i.e. the petitioners were examined as P.W. 1 in all the cases and after hearing arguments the learned District Judge has dismissed the application filed under Section 5 of the limitation Act, refusing to condone the delay and to restore the LAC appeals, against which order, the present petitions have been filed.

It is pertinent to note that on the application filed under Order IX Rule 4 of CPC, notices were ordered to the respondents and in turn the respondents have not seriously contested the applications by filing objections to the main petition or to the application under Section 5 of the Limitation Act. The evidence placed before the Court by P.W. 1 was also un-rebutted. In spite of that the Trial Court has come to the conclusion that sufficient cause are not shown by the petitioners in order to restore the said LAC appeals. Of course, in all the petitions, an application was filed under Order IX Rule 4 of CPC. It is stated that the said appeals were dismissed on 18.02.2014. But the petitioners have stated that they came to know about the said dismissal only on 17.06.2014 and after taking copy on the same day, the petitions were filed within the period of limitation i.e. on 03.07.2014. The learned Judge has come to the conclusion that even after taking the certified copy of the order the applications were filed belatedly after a period of 15 days and such 15 days delay has not been explained. Perhaps that may be the reason prompted the learned District Judge to dismiss the applications.

The above said factual matrix discloses that the contents of the affidavits filed in support of the applications under Order IX Rule 4 of CPC and under Section 5 of the Limitation Act and the evidence of P.W. 1 have not been rebutted. Therefore, it goes without saying that as to why such an explanation given by P.W. 1 should not be accepted. The Court should be magnanimous in considering the limitation point in order to advance substantial justice. It is well profounded principle of law that technicalities should not come in the way of administering substantial justice. Of course on 17.06.2014 the copy of the dismissal order of LAC was taken by the petitioners. But for a period of 15 days they did not file any application. It always happens in the village areas that if they entrust the case to the advocate, who has having duty to communicate what happens in the Court on each and every date of hearing, if there is any non or miscommunication by the counsel, for that reason the parties should not be penalized. Therefore, in that context when P.W. 1 has given evidence before the Court and also it is stated in the affidavit filed in support of the applications that the non-depositing of the Court fee due to which the dismissal of the LAC appeals were not communicated to the parties and in fact the advocate has also taken the wrong date of the said case, and presumed that the cases are still pending for payment of the Court fee. This is the exact elucidation of the fact to explain the delay in filing the said application. Therefore, the said explanation even in the absence of the evidence of advocate should not have been rejected by the Trial Court. There is no need as to why the party would say lie before the Court when it is not contested by the other side by cross-examining the witnesses or by filing objections to the applications stating that the contents of the affidavits filed in support of the applications are all false or the evidence given before the Court are also false. In the absence of totally unexplained and unreasonable delay, the Court should be very magnanimous in condoning the delay.

The Court should be very lenient and reasonable when limitation applications are to be considered; It should be borne in mind:

"(i) If the delay is condoned without any proper explanation that should cause an irreparable damage to the other side, if the delay is not so unreasonable and can be accepted by any ordinary prudent man and some reasonable and acceptable cause is shown, the same has to be accepted. The Court cannot expect particular facts from the parties, when the parties are not so educated and living in highly sophisticated society but living in village areas.

(ii) If the parties emanate from the villages they may not be in a position to explain and don''t know what the Court expect for condonation of delay. But in their own way they will try to explain the delay."

Under the said circumstances the Court should be very lenient in accepting such explanation of the persons as they are not so equipped and educated. In this context, in my opinion, it is worth to refer a decision of the Hon''ble Apex Court reported in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , wherein it is stated that;

"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, imputable to the party seeking condonation of such delay".

If the above said principles are applied while considering the delay application the Court has to consider whether the parties are so gross negligents or deliberate in their action and no bona fides are there and therefore they are not entitled for discretionary power of the Court in the absence of such reasons being given by the Trial Court and in the absence of such gross negligence, deliberate or gross inaction on the part of the parties, the Court ought to have allowed their applications. The poor people who lost their land definitely entitled for enhancement of the compensation, if really they are legally entitled to, when such facts are there it cannot be said that they have no bona fides in approaching the Court.

Turning to the facts of this case, as I have already narrated, some explanations have been given for delay. If such explanation is so unreasonable which cannot be accepted by any ordinary prudent man. Under such circumstances, the Courts have power to reject the same. But in my opinion, the delay is only 105 days in filing the application. At any stretch of imagination it can be said that it is so unreasonable delay coupled with gross negligence or deliberate inaction. When such being the case, if the delay is not unreasonable, the cause shown need not be of so high standards to condone the delay. In this background, I am of the opinion, that the learned District Judge has not applied his mind properly to ascertain whether there is any unreasonable delay or the delay, which is not at all explained by the parties. Therefore, the order requires to be set aside. Hence, I pass the following;

ORDER

The Revision Petitions are hereby allowed. Consequently, the order passed by the learned Principal District Judge at Kalaburagi in Civil Miscellaneous Nos. 17/2014, 18/2014 and 19/2014 are hereby set aside. Consequently, the applications filed by the petitioners before the District Judge under Order IX Rule 4 of CPC and applications filed under Section 5 of the Limitation Act, are hereby allowed. The LAC unregistered appeals are ordered to be restored on to the file subject to the condition that the appellants shall make the payment of Court fee within one month from the date of restoration of the appeals.

Accordingly, these petitions are disposed of.