Head Notes-
1. The concepts such as “liberal
approach”, “justice oriented approach”, “substantial justice” can not be
employed to jettison the substantial law of limitation. Especially, in cases
where the Court concludes that there is no justification for the delay. In our
opinion, the approach adopted by the High Court tends to show the absence of judicial
balance and restraint, which a Judge is required to maintain whilst
adjudicating any lis between the parties. We are rather pained to notice that
in this case, not being satisfied with the use of mere intemperate language,
the High Court resorted to blatant sarcasms. The use of unduly strong
intemperate or extravagant language in a judgment has been repeatedly
disapproved by this Court in a number of cases. (para 26)
2.
Whilst
considering applications for condonation of delay under Section 5 of the
Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary
powers. All discretionary powers, especially judicial powers, have to be
exercised within reasonable bounds, known to the law. The discretion has to be
exercised in a systematic manner informed by reason. Whims or fancies;
prejudices or predilections can not and should not form the basis of exercising
discretionary powers. (para 26)
3. Judges at all
levels in this country subscribe to an oath when entering upon office of
Judgeship, to do justice without fear or favour, ill will or malice. This
commitment in form of a solemn oath is to ensure that Judges base their
opinions on objectivity and impartiality. The first casualty of prejudice is
objectivity and impartiality. It is also well known that anger deprives a human
being of his ability to reason. Judges being human are not immune to such disability.
It is of utmost importance that in expressing their opinions, Judges and
Magistrates be guided only by the considerations of doing justice.
(para 27)
REPORTABLE
IN
THE SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 2909-2913 OF 2005
Lanka
Venkateswarlu (D) by LRs.
.. Appellants
VERSUS
State of A.P.
& Ors ..Respondents
J
U D G M E N T: SURINDER SINGH NIJJAR, J.
1.
These appeals are directed against the order
passed by a Division Bench of the High Court of Judicature of Andhra Pradesh at
Hyderabad in CMP Nos. 21114, 21115, 21116, 21117 and 21118 of 2003 dated 19th
August, 2003. By the aforesaid order, the High Court has allowed all the
petitions/applications.
2.
In the applications/petitions, respondent
No.3, herein, had sought the following directions:-
CMP No. 21114/2003: Petition under
Order 22 Rule 4 of the CPC praying that in the circumstances stated in the
affidavit titled therewith, the High Court will be pleased to permit the
petitioners to bring the above stated persons as legal representatives of the deceased
sole respondent in Appeal No. 8 of 1985 on the file of the High Court.
CMP No.
21115/2003:
Petition U/s praying that the High Court may be pleased to set aside the
dismissal Order dated 6.2.98 in AS No.8 of 1985 and to restore the appeal to
file.
CMP No.
21116/2003:
Petition Under Order 9 Rule 9 read with section 151 CPC, praying that the High
Court may be pleased to set aside the abatement caused due to the death of sole
respondent i.e. Lanka Venkateswarlu.
CMP
No. 21117/2003:
Between
Sri
D.E.V Apparao …Petitioner/impleaded Petitioner in AS No.8 of 1985 on the file
of High Court
And:
1.
The State of A.P. rep. by District Collector, Visakhapatnam.
2.
The Tahsildar, Visakhpatnam …Respondent/Appellants
3.
Lanka Venkateswarlu (died) …Respondent
Petition
under Order 1 Rule 10 CPC, prays this Hon’ble Court may be pleased to permit
the petitioners society to be impleaded as appellant No.3 along with the
appellants No. 1 and 2 in AS. 8 of 1985 on the file of the Hon’ble Court to
prosecute the appeal.
CMP No.
21118/2003:
Petition U/s 5 of Limitation Act praying the High Court may be pleased to
condone the delay of 883 days in filing the petition seeking to set aside the dismissal
order dated 6.2.1998.
These
petitions coming on for hearing, upon perusing the petition and the affidavit
filed in support thereof and upon hearing the arguments of Govt. pleader for
Appeal for Petitioners in CMP Nos. 21114, 21115, 21116, 21118 of 2003 and of
Mr. K. Sarva Bhouma Rao, Advocate for petitioner in CMP No. 21117 of 2003 and
of Mr. M.S.R. Subramanyam, Advocate for the respondents in CMP Nos. 21114,
21115, 21116, 21118 of 2003 and G.P. for Appeal for the respondents in CMP No.
21117 of 2003.”
3.
We may now briefly notice the relevant facts
as stated in the pleadings of the parties and the impugned order of the High
Court. The predecessor of the appellants, i.e., Shri Lanka Venkateswarlu,
(hereinafter referred to as ‘original plaintiff’), brought a suit O.S. No. 72
of 1979 before the subordinate judge Visakhapatnam for the declaration of his
title as the absolute owner of the suit schedule property and for permanent
injunction restraining respondents Nos. 1 and 2 from interfering with his
peaceful possession. The suit schedule property, to the extent of 2 acres was,
according to the original plaintiff, covered by survey No. 73/12 in Thokada
village. He had purchased the suit schedule property by a registered sale deed
dated 15th July, 1961 from one Gonna Appanna son of Venkataswamy of China
Gantyda village. The original plaintiff was constrained to file the aforesaid
suit on coming to know that respondent Nos. 1 and 2 were claiming the suit
schedule land to be “banjar land” which vested in the Government. He had also learned
that the land was in imminent danger of being illegally alienated by the
respondent Nos. 1 and 2. They were claiming that the land was required to issue
Pattas to weaker sections of society.
4.
Respondent Nos. 1 and 2 were impleaded as the defendants
to the suit. Subsequently, the suit was transferred to the Court of IVth
Additional District Judge, Visakhapatnam and renumbered as O.S. No. 83 of 1981.
5.
The aforesaid averments of the original
plaintiffs were controverted by the respondent Nos. 1 and 2. It was claimed
that the plaint schedule property was not covered by old survey No. 73/12 of
the original village of Thokada. The boundaries as well as survey number were stated
to be fictitious, forged and imaginary. Even the ownership of the ancestors of
the vendor of the original plaintiff of the suit schedule land was denied.
Further, the alleged sale deed dated 15th July, 1961 between the original
plaintiff and the vendor was denied. It was also stated that the original
plaintiff was not in possession and enjoyment of the plaint schedule property.
6.
On the pleadings of the parties, the trial
court framed six issues. Issue No. 1 pertains to the title of the original
plaintiff to the schedule property. Issues No.2 & 3 were with regard to,
whether the original plaintiff was entitled to relief of declaration and
injunction as prayed for. Issue No.4 was whether the suit is not maintainable.
A perusal of the judgment of the trial
court shows that the suit was hotly contested on each and every issue. Issues
1, 2, 3, 4 and 6 were decided in favour of the original plaintiff and against
the defendants, i.e., respondent Nos. 1 and 2. Issue No.5 with regard to valuation
of the suit was not pressed by the government pleader. The suit was decreed by
judgment dated 24th September, 1982.
7.
The respondents challenged the aforesaid
judgment and decree by filing an appeal before the High Court of Andhra Pradesh being A.S. No. 8 of 1985. The
sole respondent, i.e., original plaintiff died on 25th February, 1990.
Therefore, the Advocate appearing for the deceased original plaintiff being the
‘sole respondent’ in the appeal filed a memo before the High Court giving intimation
about the death of his client. The memo was filed after giving notice to the
advocate for respondent Nos. 1 and 2, who were appellants in the aforesaid appeals.
In spite of such intimation, respondent Nos. 1 and 2 failed to bring the legal
representatives of the deceased original plaintiff on record.
8.
From the judgment of the High Court it is
apparent that the appeal came up for hearing on 24th April, 1997. At that
stage, the counsel for the appellants again brought to the notice of the Court
that his client has passed away on 25th February, 1990. The High Court directed
the government pleader to take steps to bring on the record the legal
representatives of the original plaintiff and posted the matter for hearing on
16th June, 1997. It appears that no actions were taken by the respondents to
comply with the order passed by the High Court on 24th April, 1997. Therefore,
on 6th February, 1998, Justice V. Rajagopala Reddy, J. passed the following
order:-
“Appeal
under Section 96 CPC against the order of the Court of the IV Addl. District Judge,
Visakhapatnam dt.24.09.1982 in O.S. No. 83/81.
This
appeal coming on for orders under Rule 64 of the Appellate Side Rules of the
High Court on the failure of the Appellant herein.
1.
To
take steps to bring on record the LRs. Of
the deceased sole respondent.
In
the presence of G./P. for Excise for the Appellant and of Mr. M.S.R.
Subramanyam, Advocate for the respondent No.1.
It
is ordered as follows:
1.
That the Appellant do within one week from the date of this order comply with
the requisitions of the Office referred to above and;
2.
That in default of compliance with the said requisitions within the time
prescribed in clause 1 supra, the Appeal shall stand dismissed as against the
sole respondent herein.”
9.
The aforesaid order was admittedly not
complied with. Consequently, the appeal stood abated in terms of the order
dated 6th February, 1998. It appears that thereafter CMPSR No. 49656 of 2000
was moved by respondent Nos. 1 and 2 seeking condonation of 883 days delay in
filing the petition to set aside the dismissal order dated 6th February, 1998.
The application was accompanied by an affidavit where it is candidly admitted by
respondent No.2 that the order dated 6th February, 1998 was not complied with.
It was further admitted that as the order dated 6th February, 1998 was not complied
with, the default order came into force and the appeal stood dismissed.
10.
In this affidavit, the explanation given is
that the predecessors of the officer, who affirmed the affidavit dated 11th
July, 2000 came to know about the dismissal of the appeal during the course of
investigation in original O.S. No. 6 of 2000 which had been filed by the widow
and the children of the deceased original plaintiff, i.e., sole respondent in
the appeal. It is also admitted that
thereafter, an application was filed for setting aside the order of abatement
dated 6th February, 1998, but, without any application seeking condonation of
delay of 883 days in filing the petition. To cover the foresaid lapse, CMP No.
21118 of 2003 was filed seeking condonation of delay of 883 days in filing the
petition.
11.
Thereafter CMPSR No. 58644 of 2000 was filed
on 17th August, 2000 with a prayer to condone the delay of 3703 days to bring
the legal representatives on record. CMPSR No. 58646 of 2000 was filed to bring
the legal representatives of the deceased original plaintiff on record and
CMPSR No. 58645 of 2000 to set aside the order of dismissal in AS No. 8 of 1985
dated 6th February, 1998 was filed. These applications were subsequently numbered
as noted in the heading of the impugned judgment.
12.
It
appears from the impugned order of the High Court and CMPSR No. 58644 of 2000
was numbered as CMP no. 17186 of 2000 on 17th August, 2000 and listed before
the Court on 27th September, 2000. The High Court granted two weeks time for
filing the counter. The aforesaid CMP was posted for hearing before the bench on
16th October, 2000 (Venkatanarayan,J.). At that time, counsel for the deceased
original plaintiff submitted that his client had died in 1990 and he had no
instructions. Therefore, the Court directed to issue notice to the parties on
the petition. Even at that stage the government pleader did not bring to the
notice of the Court that the applications filed by respondent Nos. 1 and 2 to
set aside the order of dismissal and to bring the legal representatives on
record were pending consideration.
13.
Thereafter it appears the matter was adjourned
on a number of occasions from 27th June, 2001 to 9th April, 2002. Surprisingly,
on 3rd June, 2002 the government pleader again took time from the Court to
verify whether any separate application was filed for restoration of the appeal
and whether any such application was pending or not. Thereafter the matter was
not pursued by the government pleader.
14.
In
the meantime, the alleged beneficiaries to whom Pattas had been granted by the
Government Poramboke in the year 1979
filed CMP No. 21705 of 2000, seeking permission of the Court to come on record
as the third appellant in the appeal. In the impugned order, it is also pointed
out that the pendency of the applications had come to the notice of the Court
intermittently. It appears that the application to condone the delay in filing
the petition for setting aside the order of dismissal was filed, when the lapse
was pointed by the Court.
15.
Thereafter, it seems that without the
adjudication of any of the applications
on merits, the appeal was listed for hearing before the Bench, which culminated
into passing the judgment and order dated 19th August, 2003, subject matter of
the present appeal. By the aforesaid judgment, the High Court has allowed all
the applications restored the appeal posted it for hearing on 25th August, 2003.
16.
This
Court while issuing notice in the SLP on 15th December, 2003 directed that “in
the meantime, proceedings in the appeal pending in the High Court shall remain
stayed”. Therefore, it is evident that the situation today is as it was when
the order was passed on 6th February, 1998, i.e., appeal filed by the
respondent Nos. 1 and 2 stood abated and hence dismissed.
17.
We have
heard the learned counsel for parties. Mr. P.S. Narasimha, senior advocate,
appearing for the appellant submitted that the impugned order of the High Court
cannot be justified on any legal ground. He submits that the High Court having
itself recorded the utter negligence of the respondents in pursuing the appeal
at every stage, without any justification, condoned the delay. The learned
senior counsel pointed out that there was no explanation, much less any
plausible explanation to justify the delay of 3703 days in filing the application
for bringing on record the LRs. of the sole respondent or for the delay in
filing the application for setting aside the order dated 6th February, 1998. It
was further submitted that there was no justification to permit the respondent
No.3 to be impleaded as a party in the appeal. Learned counsel relied on the
judgment of this Court in the case of Balwant
Singh (dead) Vs. Jagdish Singh (2010)8 SCC 685 in support of the submission
that the law of limitation has to be enforced in its proper prospective. Even
though the Courts have power to condone the delay, it can not be condoned
without any justification. Such an approach would result in rendering the
provisions contained in the Limitation Act redundant and inoperative.
18.
On the other hand, learned counsel for the respondents
relied on the judgments of this Court in the case of N. Balakrishnan
Vs. M . Krishnamurthy (1998) 7 SCC 123 , Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors.
(2003) 10 SCC 691 and Sardar Amarjit
Singh Kalra (dead) by LRs Vs. P ramod Gupta (dead) by LRs. (2003) 3 SCC 272 and submitted that the High Court in condoning the delay
has merely advanced the cause of substantial justice.
19.
We
have considered the submissions made by the learned counsel. At the outset, it
needs to be stated that generally speaking, the courts in this country,
including this Court, adopt a liberal approach in considering the application
for condonation of delay on the ground of sufficient cause under Section 5 of
the Limitation Act. This principle is well settled and has been set out succinctly
in the case of Collector, Land
Acquisition, Anantnag & Ors. Vs. Katiji & Ors. (1987) 2 SCC 107.
20.
In
the case of M. Balakrishnan (supra),
this Court again reiterate the principle that rules of limitation are not meant
to destroy the rights of parties. They are meant to see that the parties do not
resort to dilatory tactics, but seek their remedy promptly.
21.
In
the case of Sardar Amarjit Singh Kalra
(supra), this Court again emphasized
that provisions contained in the Order 22 CPC were devised to ensure
continuation and culmination in an effective adjudication and not to retard
further progress of the proceedings. The provisions contained in the Order 22
are not to be construed as a rigid matter of principle, but must ever be viewed
as a flexible tool of convenience in the administration of justice. It was
further observed that laws of procedure are meant to regulate effectively,
assist and aid the object of doing a substantial and real justice and not to foreclose
even adjudication on merits of substantial rights of citizen under personal,
property and other laws. In the case of Mithailal
Dalsangar Singh and Ors. Vs. Annabai Devram Kini & Ors, (Supra), this
Court again reiterated that in as much as abatement results in denial of
hearing on the merits of the case, the provision of an abatement has to be
construed strictly. On the other hand, the prayer of setting aside abatement
and the dismissal consequent upon abatement had to be considered liberally. It
was further observed as follows:-
“The
Courts have to adopt a justice oriented approach dictated by the uppermost consideration
that ordinarily a litigant ought not to be denied an opportunity of having a
lis determined on merits unless he has, by gross negligence, deliberate
inaction or something akin to misconduct, disentitled himself from seeking the
indulgence of the court.”
22.
The
concepts of liberal approach and reasonableness in exercise of the discretion by
the Courts in condoning delay, have been again stated by this Court in the case
of Balwant Singh (supra), as follows:-
“25.
We may state that even if the term “sufficient cause” has to receive liberal construction,
it must squarely fall within the concept of reasonable time and proper conduct of
the party concerned. The purpose of introducing liberal construction normally
is to introduce the concept of “reasonableness” as it is understood in its
general connotation.”
“26.
The law of limitation is a substantive law and has definite consequences on the
right and obligation of party to arise. These principles should be adhered to
and applied appropriately depending on the facts and circumstances of a given
case. Once a valuable right has accrued in favour of one party as a result of
the failure of the other party to explain the delay by showing sufficient cause
and its own conduct, it will be unreasonable to take away that right on the mere
asking of the applicant, particularly when the delay is directly a result of negligence,
default or inaction of that party. Justice must be done to both parties
equally. Then alone the ends of justice can be achieved. If a party has been
thoroughly negligent in implementing its rights and remedies, it will be equally
unfair to deprive the other party of a valuable right that has accrued to it in
law as a result of his acting vigilantly.”
23.
Let us
now examine as to whether the High Court was justified in condoning the delay
in the peculiar facts of the presence case. The High Court in its judgment records
the following conclusions:-
“(1) The
Government Pleader having filed the appeal on 18.2.1983 has taken three long years
to get the appeal numbered.
(2) The sole
respondent died in 1990. The learned counsel for the respondent submits that he
served a letter on the learned Government Pleader bringing to his notice about
the death of his client in 1990 itself. Since the letter is not traced we are
not giving much importance to that fact. But at the same time this fact was brought
to the notice of the Government Pleader on 24.2.1997 when the appeal was listed
for hearing.
(3) Even though
the Court gave sufficient time the Government Pleader has not taken any steps
to bring LRs. on record.
(4) After one year the Court passed a Conditional
Order on 6.2.1998 and the appeal was dismissed for not bringing the LRs. on record.
(5) After two
more years the concerned officials of the Government and the Government Pleader
in office at the relevant point of time, filed some applications, which are not
in order.
(6) Even then
they have not bestowed any attention either to comply with the defects in filing
the application or in getting the orders are passed on these applications. But
at the same time they went on taking time without knowing for what purpose they
were taking time.
In the result an
appeal which would have been disposed of in 1997 remained pending all these years
mainly due to the negligence on the part of the Government Pleader in office.
Thereafter at
the two stages, the High Court records that:-
“In the normal
course we would have thrown out these applications without having second thought
in the matter…………..”
“We have already
observed that in the normal course we would have dismissed the applications for
severe latches on the part of the appellants and their counsel.”
24.
Having
recorded the aforesaid conclusions, the High Court proceeded to condone the
delay. In our opinion, such a course was not open to the High Court, given the pathetic
explanation offered by the respondents in the application seeking condonation
of delay.
25.
This
is especially so in view of the remarks made by the High Court about the delay
being caused by the inefficiency and ineptitude of the government pleaders. The
displeasure of the Court is patently apparent from the impugned order itself.
In the opening paragraph of the impugned order the High Court has, rather sarcastically,
dubbed the government pleaders as without merit and ability. Such an
insinuation is clearly discernable from the observation that “This is a classic
case, how the learned government pleaders appointed on the basis of merit and ability (emphasis supplied) are discharging
their function protecting the interest of their clients”. Having said so, the
High Court, graphically narrated the clear dereliction of duty by the concerned
government pleaders in not pursuing the appeal before the High Court
diligently. The High Court has set out the different stages at which the
government pleaders had exhibited almost culpable negligence in performance of their
duties. The High Court found the justification given by the government pleaders
to be unacceptable. Twice in the impugned order, it was recorded that in the
normal course, the applications would have been thrown out without having a second
thought in the matter. Having recorded such conclusions, inexplicably, the High
Court proceeds to condone the unconscionable delay.
26.
We
are at a loss to fathom any logic or rationale, which could have impelled the
High Court to condone the delay after holding the same to be unjustifiable. The
concepts such as “liberal approach”, “justice oriented approach”, “substantial
justice” can not be employed to jettison the substantial law of limitation.
Especially, in cases where the Court concludes that there is no justification
for the delay. In our opinion, the approach adopted by the High Court tends to
show the absence of judicial balance and restraint, which a Judge is required to
maintain whilst adjudicating any lis between the parties. We are rather pained
to notice that in this case, not being satisfied with the use of mere
intemperate language, the High Court resorted to blatant sarcasms. The use of
unduly strong intemperate or extravagant language in a judgment has been
repeatedly disapproved by this Court in a number of cases. Whilst considering applications
for condonation of delay under Section 5 of the Limitation Act, the Courts do
not enjoy unlimited and unbridled discretionary powers. All discretionary
powers, especially judicial powers, have to be exercised within reasonable
bounds, known to the law. The discretion has to be exercised in a systematic
manner informed by reason. Whims or fancies; prejudices or predilections can
not and should not form the basis of exercising discretionary powers.
27.
The
order of the High Court, in our opinion, is based purely on the personal
perceptions and predilections of the Judges on the bench. The latent anger and
hostility ingrained in the expressions employed in the judgment have denuded
the judgment of impartiality. In its desire to castigate the government pleaders
and the Court staff, the High Court has sacrificed the “justice oriented
approach”, the bedrock of which is fairness and impartiality. Judges at all
levels in this country subscribe to an oath when entering upon office of
Judgeship, to do justice without fear or favour, ill will or malice. This
commitment in form of a solemn oath is to ensure that Judges base their
opinions on objectivity and impartiality. The first casualty of prejudice is
objectivity and impartiality. It is also well known that anger deprives a human
being of his ability to reason. Judges being human are not immune to such disability.
It is of utmost importance that in expressing their opinions, Judges and
Magistrates be guided only by the considerations of doing justice. We may
notice here the observations made by a Constitution Bench of this Court in the
case of State of U.P. Vs. Mohammad Naim
(1964) 2 SCR 363 , which are of some relevance in the present context. In
Paragraph 11 of the judgment, it was observed as follows:-
“If there is one
principle of cardinal importance in the administration of justice, it is this:
the proper freedom and independence of Judges and Magistrates must be
maintained and they must be allowed to perform their functions freely and
fearlessly and without undue interference by any body, even by this Court. At
the same time it is equally necessary that in expressing their opinions Judges
and Magistrates must be guided by considerations of justice, fair-play and
restraint. It is not infrequent that sweeping generalisations defeat the very
purpose for which they are made. It has been judicially recognised that in the matter
of making disparaging remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases to be decided by them,
it is relevant to consider (a) whether the party whose conduct is in question
is before the court or has an opportunity of explaining or defending himself; (b)
whether there is evidence on record bearing on that conduct, justifying the
remarks; and (c) whether it is necessary for the decision of the case, as an
integral part thereof, to animadvert on that conduct. It has also been recognised
that judicial pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve.”
28.
We are
of the considered opinion that the caustic remarks made by the High Court,
against the government pleaders and the Court staff clearly exhibits a departure
from the principles quoted above.
29.
We
are of the considered opinion that the judgment of the High Court is
unsustainable either in law or in equity. Consequently, the appeals are
allowed. The impugned judgment of the High Court is set aside with no order as
to costs.
……………………………..J.
[B.Sudershan
Reddy]
……………………………..J.
[Surinder
Singh Nijjar]
New
Delhi;
February
24, 2011.
