Civil Appeal No. 2480 of 1993

12th April, 1993

Cases Cited:
AIR 1988 SC 897 : (1988) 2 SCC 142 [Para 8]
AIR 1987 SC 1353 : (1987) 2 SCC 107 [Para 11]
1987 Supp SCC 685 : (1987) 2 JT 701 [Para 6]
AIR 1984 SC 1744 : (1984) 4 SCC 66 [Para 8]
AIR 1970 SC 1953 : (1970) 2 SCR 90 [Para 7]
AIR 1962 SC 361 : (1962) 2 SCR 762 [Para 7]
(1890) ILR 13 Madras 269 [Para 6]

JUDGMENT

JUDGMENT :-For reasons given by us in our concurring but separate judgments, the appeal is allowed. No costs.

2. K. RAMASWAMY, J. :- Special Leave granted.

3. The respondent contractor contracted to execute the works of the Union of India. During its course dispute had arisen between the respondent and the Union leading to initiation of arbitration proceedings for resolution. Weeding out the irrelevant, suffice to state that the Arbitrator awarded a sum of Rs. 7,98,655/- and interest thereon in favour of the respondent in award dated December 10, 1990. It was filed in the High Court of Delhi on January 18. 1991 to make it a rule of the Court and the same was served on the Union on February 15, 1991. Art. 119 of the Schedule to the Limitation Act, 1963 prescribes period of 30 days from the date of receipt of the notice, to file objections seeking to set aside the award. The last date to file objections was March 19, 1991. The objections

came to be filed on April 16, 1991. Thus there is a delay of 25 days in filing the objections to the award. The single Judge dismissed the application and on appeal it was confirmed holding that there was further delay in filing the L.P.A. itself. Thus this appeal by special leave.

4. Section 5 of the Limitation Act 36 of 1963 for short 'the Act' gives power to the Court of extension of the prescribed period of limitation in certain cases to file any appeal or any application and may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Section 5 is an exception to Section 3(1) of the Act which adumbrates to axe the suit or proceedings instituted after the prescribed period of limitation. It confers jurisdiction on the Court to satisfy itself that the plaintiff/ appellant/applicant had sufficient cause for not instituting the cause within the prescribed period. On its so satisfying it has been empowered to condone the delay and admit the suit, appeal or application, notwithstanding its having been filed after the expiry of limitation. The condonation of delay is, therefore, not the same as exclusion of time under other provisions of the Act such as Sections 12 and 14(1). Therefore, it is the duty of the plaintiff/ appellant/applicant to satisfy the court that he has sufficient cause to condone the delay in filing the suit/appeal or application and that discretion has been conferred on the Court to condone the delay and admit the plaint, appeal or application. The discretion has been conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. The exercise of the discretion should, therefore, be judicial and not an arbitrary exercise of discretion.

5. The question, therefore, is whether the appellant had established sufficient cause for filing the application beyond 25 days. It is settled law that the need to explain the delay arises from the last day on which the limitation expires. It is not incumbent to explain every day's delay proceeding thereto as to how the matter was dealt with but, however, the previous acts would throw light on the bona fides on the part of the appellant or applicant in pursuing the matter after the adverse decision was rendered by the Court against him. It is contended by Shri Chidambaram, the learned senior counsel for the respondent that the delay has not been properly explained from its inception and there are halting gaps leading to abnormal delay in taking decision at every level of the government which smacks of all bona fides and diligence in pursuing the cause, by the department concerned. The trial Judge as well as the division bench had gone into the merits and found that the delay in filing the application and the appeal has not been properly explained. The discretion thus exercised by the High Court needs no interference and no indulgence should be shown to the State. The Act did not give any special consideration to the cause laid at the behest of the State. Shri Tulsi, the

learned Addl. Solicitor General has contended that the government being an impersonal institution, the rigorous test laid against private person to explain every day's delay should not be the yardstick. To advance substantial justice and cause of public justice, sufficient latitude or indulgence may be given while exercising the discretion under section 5 to condone the delay in filing the appeal or application by the State, It is difficult to accept into the proposition to create discrimination between the citizen and the State when law made no such distinction. But courts in an appropriate case leaned in favour of condoning delay without discrimination and undue hostility against State as litigant. In an appropriate case even citizen also is entitled to consideration in condonation of delay. Each case depends on its own facts and circumstances.

6. In Ramlal Motilal and Chhotelal v. Rewa Coalfields Ltd., (1962) 2 SCR 762 : (AIR 1962 SC 361) the question was whether the appellant had to explain the delay caused during the entire period of limitation or from the last day of the limitation and also meaning of the word 'sufficient cause'. It posed the question thus: "Now what the words "within such period" denote is the question. Does the contention in which the expression occurs in S. 5 justify to mean during such period?" It was concluded that it would not be reasonable to require a party to take the necessary action on the very first day to the cause of action accrues. The party would be entitled to take its stand to file the appeal on any day during the said period and prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it would be called upon to explain its conduct during the whole period of limitation prescribed. "Within such period" means within the period which is the last day of limitation prescribed. In other words, all cases falling under S. 5 the party has to show as to why he did not file the appeal on the last day of the limitation prescribed and has to explain for whole of the period covered by the period between the last day of limitation and the date on which the appeal is filed. This court upheld the law laid down by the Madras High Court in Krishnan v. Chattappan, (1890) ILR 13 Madras 269 that the exercise of the discretion under S.5 would be liberal and the words 'sufficient cause' receive liberal construction so as to advance substantial justice when neither negligence nor any inaction nor want of bona fide is imputable. In Lala Mata Din v. A. Narayanan, (1970) 2 SCR 90 (91) : (AIR 1970 SC 1953) this court held that the appellant by filing an appeal beyond limitation would not stand to gain. Therefore, it is always a question whether the appeal was devised to cover an ulterior purpose such as laches on the part of the litigants or an attempt to see litigation of under hand by imputing mistake of the counsel. This court condoned the delay and held that the High Court unfortunately started from a wrong angle. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 : (AIR 1987 SC 1353)

this court said that the legislation has conferred the power under S. 5 on the court to condone the delay in order to enable the court to do substantial justice to the parties by disposing of the matters on merits. The words 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which substantiates justice that being the prime purpose for the existence of the institution of courts. Liberal approach is adopted by this court thus:

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

2. 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.

3. "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.

4. 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 no-deliberate delay.

5. 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.

6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

It was also further held that doctrine of equality before law demonstrates that all litigants including such as a State, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing on the buck ethos, delay on its part 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. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. The delay was accordingly condoned.

7. In O. P. Kathpalia v. Lakhmir Singh, (1984) 4 SCC 66 : (AIR 1987 SC 1744) this court held that if failure to exercise discretion leads to miscarriage of justice, it would be a sufficient cause

for the condonation of delay in prefering the appeal. It was held in that case that failure to condone the delay by the High Court under trial resulted in gross miscarriage of justice. Delay was accordingly condoned. In Bhag Singh v. Major Daljit Singh, 1987 Supp SCC 685 it was held that the court while considering the application under S. 5 will consider the facts and circumstances and for taking to strict and padentic stand which will, cause injustice to consider it from the point of taking to advance the cause of justice. The delay in that case was accordingly condoned.

8. In G Ramegowda, Major v. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142 : (AIR 1988 SC 897) this court surveyed in extenso plethora of precedents and held that law of limitation is, no doubt, the same for private citizen as for governmental parties. Government like any other litigant must take responsibility for the acts or omissions of its officers. 'Sufficient cause', it might perhaps be some unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characterstic of the functioning of the Govt. Governmental decisions are slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bears responsibility of Govt. must have 'a little play at the joints'. Due recognition of these limitations on governmental functioning, of course, within reasonable limits is necessary if the judicial approach is not to be rendered unrealistic. It would perhaps be unfair and unrealistic to put Govt. and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision making process. While a private person can take instant decision a bureaucratic or democratic organ hesitate and debates, consults and considers, speaks through papers, moves horizontally and vertically till at least it gravitates towards a conclusion - unmindful of time and impersonally. This court also approved the ratio in Smt. Katji's case (AIR 1987 SC 1353) (supra) that substantial justice and technical considerations are noted against each other because of substantial justice results to be preferred. The other side cannot be claimed to have vested right in injustice being done because of non-deliberate delay. Judiciary is respected not on account of its power to do legal injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.

9. This court has consistently laid down the law that the approach of the court in considering sufficient cause under S. 5 is to advance substantial justice, but not pedantic nor legalistic approach. Every attempt should be made to do justice and to avoid injustice. Law makes no distinction between a private person and government. No one would stand to gain by delay in laying the proceedings unless judicial process is taken aid to harass the opponent or to coerce him/it to settle

terms with the applicant. Adoption of justice oriented approach advances substantial justice and removes nursing feeling of injustice. Of course, a person having his own firm belief that his cause is just, would always remain obstinate to his sense of justice and so would be an exception. Technical approach would be a breading source for injustice or an impediment to fair adjudication. An aggrieved private person would take instant decision and would pursue diligently appellate or revisional remedy unless prevented by sufficient cause. But Govt. acts through bureaucrats. Delay in deliberations and consequent procrastination, unmindful and insensitive to bar of limitation is routine. On many an occasion it is an easy means to deliberately keep back the file for either obvious or maneuvered mechanisation to defeat public justice. Experience tells us galore of instances that public exchequer is the easy pray to plunder by prolonged decision making to file an appeal or application and victims are the tax payers or welfare schemes. Courts would be cognizant to the hard realities and prevailing condition and blindfold' to them bread corruption, nepotism and inefficiency. The expression of "explaining every day's delay", if logically extended, would lead to the need for explaining every minute's or every second's delay leading to grotesque results. That would not be the approach. This court has taken judicial notice of reality that in governmental decision making process no one take responsibility to final decision, attempting to pass on the buck at every stage, resultantly delay in decision making. It is not uncommon that on many occasions deliberately the file is kept unmoved for days together for oblique or inexplicable reasons at the price of public justice. Therefore, pragmatic approach and justice orientation demands a lean in the latitude towards public justice based upon the facts and circumstances in each case. Unless wanton delay is discernible from record, the above approach would advance substantial justice paving way to find sufficient cause in Government legislation (litigation) delay. On many a time the deponent of the affidavit filed in support of the petition to condone delay finds it inconvenient or discomfort to put in writing the grounds led to the delay in filing the application or appeal, but the record or given situation may be eloquent. Therefore, pragmatic approach may be called in aid to advance cause of public justice, in particular when public exchequer is involved. Considered from this perspective, we hold that the delay of 25 days in filing the application due to procedural red tapism has been the cause and there is sufficient cause for the delay which has been properly explained to file the application objecting to the legality of the award and filing Letters Patent Appeal. We are satisfied that it is a fit case to condone the delay. The High Court has failed to exercise its discretion in refusing to condone the delay. The appeal is allowed, but in the circumstances, without costs.

10. R. M. SAHAI, J. :-With profound respect to Brother Ramaswamy, J., I agree that delay in filing the objection by the State to the award may

be condoned. But I have great difficulty in accepting the submission advanced by the learned Additional Solicitor General that the Government being an impersonal institution the yardstick for exercise of discretion under Section 5 of the Limitation Act should not be the same as for a private person. I am not willing to accept that the State under our constitutional scheme can be treated as a favoured litigant. Law does not warrant such interpretation. It would be against public policy and rule of fairness. The interpretative process should not encourage any differentiation between litigant on wealth or power. Exercising discretion by courts to advance substantial justice is well settled and universally accepted. But granting indulgence to State as a matter of law as procedural delay in Government functioning and decision making process is implicit, would result in carving out on exception without any provision. If the officers of the Government are not aware of their duties and responsibilities and their impersonal approach results in loss of revenue the Government would be well advised to take appropriate action against such officers including the recovery of loss of public revenue. But it cannot be laid down as a rule on assumption of prevailing corruption amongst Government departments without any foundation for it. Laxity may be here and there but it cannot be the basis for painting the Government with black brush and brand it as corrupt for purposes of condoning delay under Section 5 of the Limitation Act. The yardstick for exercise of discretion whether it is a private litigant or Government is the same, namely, if the delay in taking the proceedings was bona fide. Otherwise it cannot be justified in law that a poor litigant, of which there is no derth in this country, coming from remote villages may be non-suited and his appeal or application may be dismissed either because he was not aware of the niceties of the law or technicalities of the rule of limitation or had the misfortune of engaging a counsel who was not well versed in his professional duties whereas the State which is manned by a hierarchy of officers, educated, trained and appointed for this very purpose would be entitled to condonation of delay as its officers may be acting on extraneous consideration. In my opinion such construction would not be condoning delay and exercising discretion but it shall result in putting seal of approval on careless and negligent functioning in the Government department.

11. Ratio in G. Ramegowda, Major v. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142 : (AIR 1988 SC 897) relied by the learned Additional Solicitor General does not support the submission that the State for purposes of Section 5 has to be treated differently. On the contrary the Court emphasised the well settled principle of construing the section liberally in facts and circumstances of each case. For, a common man it may be his ignorance, illiteracy, delayed communication, poor legal advice and for the State it may be delay in consultative process. Circumstances may be entirely

different. But they must be bona fide, No party which comes to a court of law whether it is a man in the street or the State can claim that it should be treated differently because of his status. Therefore, while rejecting the submission of the learned Additional Solicitor General for treating the State differently I agree that on facts of this case the delay may be condoned.

Order Accordingly