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SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, HRISHIKESH ROY, JJ.
The State of Manipur & Ors. - Appellants
Versus
Koting Lamkang – Respondent
Civil Appeal No.8298 of 2019 (@ Special Leave Petition (Civil) No. 22541 of 2018)
Decided On : 22-10-2019
Civil Procedure Code, 1908 – Section 96 – Limitation Act, 1963 – Section 5 – Regular First Appeal – Limitation – Bonafide mistake in preferring appeal before wrong forum – Refusal by High Court to condone delay of 312 days in RFA preferred by State – It was necessary for court to also be conscious of bureaucratic delay and slow pace in reaching a Government decision and routine way of deciding whether State should prefer an appeal against a judgment adverse to it – Even while observing that law of limitation would harshly affect the party, court felt that delay in appeal filed by State, should not be condoned – Regard should be had in similar such circumstances to impersonal nature of Government’s functioning where individual officers may fail to act responsibly – This in turn, would result in injustice to institutional interest of State – If appeal filed by State are lost for individual default, those who are at fault, will not usually be individually affected – It is necessary for making available to appellants a legal forum, which could consider their challenge to decree obtained by plaintiff from Civil Judge (senior division) – Interest of justice would be better served, if appellants’ challenge to decree of Trial Court is allowed to be examined on merit, by first Appellate Court – If merit of Defendant’s RFA is not permitted to be examined by Appellate Court, State will have no opportunity to address their grievances before a higher Court – First Appeal should be considered on merit instead of State being non-suited on the ground of delay – Delay in filing first appeal is condoned – This shall, however be subject to payment of costs of Rs. 50,000/- by appellants in High Court. (Paras 7, 8, 9, 10, 11 and 12)
Facts of the case:
Condonation of delay of 312 days in preferring Regular First Appeal was sought by appellants with the projection that they made a bonafide mistake in preferring the appeal against impugned order and decree dated 18.07.2016 before wrong forum i.e. District Judge, Imphal West. Court however did not entertain appeal on the ground that the Court has no pecuniary jurisdiction to entertain appeal.
Findings of Court:
In present matter, delay to the extent of 44 days, in moving before wrong court was found to be satisfactorily explained in impugned judgment. As regards failure of State to adequately explain remaining period of delay, our opinion is that interest of justice would be better served, if appellants’ challenge to decree of Trial Court is allowed to be examined on merit, by first Appellate Court. If merit of Defendant’s RFA is not permitted to be examined by Appellate Court, State will have no opportunity to address their grievances before a higher Court.
Result : Appeal allowed.
ORDER :
HRISHIKESH ROY, J.
Leave granted.
2. This appeal is preferred against the Judgment and order dated 27.11.2017 passed by the High Court of Manipur at Imphal in M.C. (RFA)No. 19 of 2017 in reference to RFA No. 5/2017 whereby and where under, the learned Judge after considering the application filed by the appellants for condonation of delay of 312 days in preferring the Regular First Appeal, has declined to condone the delay and the application was consequently dismissed. The condonation was sought by the appellants with the projection that they made a bonafide mistake in preferring the appeal against the impugned order and decree dated 18.07.2016 before the wrong forum i.e. learned District Judge, Imphal West. The Court however did not entertain the appeal on the ground that the Court has no pecuniary jurisdiction to entertain the appeal. Accordingly, Judl.. Case No. 32 of 2017 was disposed of by the learned District Judge on 28.07.2017 permitting the appellant to file appeal before the High Court of Manipur.
3. From the application for condonation of delay in RFA No. 19/2017, it can be seen that the time spent by the appellant in the wrong forum was 44 days (15.06.2017 to 28.07.2017). The learned Judge of the High Court found that the delay was not explained for the other days. The condonation application was accordingly rejected with the observation that there is no explanation for the time taken by the appellants between 18.07.2016 and 15.06.2017. On that basis, the Regular First Appeal was not entertained on merits.
4. We have heard learned counsel appearing on behalf of the appellant-State of Manipur as well as the learned counsel appearing on behalf of the respondent.
5. The Learned counsel appearing on behalf of the respondent would point out that after the decree, the execution proceedings commenced and was finally concluded on 11.07.2018 and, therefore, nothing survives in the RFA to be considered on merits inasmuch as, possession of the concerned land was handed over to the respondent-plaintiff.
6. The above contention of the respondent is strongly refuted by the learned counsel appearing on behalf of the appellants. He submits that the State of Manipur and other defendants continue to be in possession of the disputed land, notwithstanding the decree and the execution proceedings.
7. In so far as the refusal by the High Court to condone the delay of 312 days in the RFA preferred by the State of Manipur and others, it is apparent that the appellants did prefer the appeal at first instance on 15.06.2017 before the District Judge. But since this was before the wrong forum and it was filed after a delay of about eleven months and there is no explanation for the time taken by the State between 18.07.2016 and 15.06.2017, the delay in the RFA before the High Court was not condoned. In fact the Court found that the State has not shown as to what prevented them from preferring the appeal before the District Judge (wrong forum), until 15.06.2017. The Court also said that the latitude in applying the standards of “sufficient cause” test is not attracted, in the instant case.
8. But while concluding as above, it was necessary for the court to also be conscious of the bureaucratic delay and the slow pace in reaching a Government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the court felt that the delay in the appeal filed by the State, should not be condoned.
9. Regard should be had in similar such circumstances to the impersonal nature of the Government’s functioning where individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by State are lost for individual default, those who are at fault, will not usually be individually affected.
10. In the instant case under the decree passed agains
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