Back
Gujarat High Court
Judgename :K.M.MEHTA, AKIL KURESHI
C.S.JARDOSH - Appellant
Versus
SOMABHAI RANCHHODBHAI PATEL, POWER OF ATTORNEY - Respondent
First Appeal 2317 Of 1998
Decided On : 05/01/2006
Restoration of appeal - Delay - Sufficient cause - Finding of - Sustainability.
Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 21 Rule 106 (3) - Limitation Act, 1963 (Central Act 36 of 1963) - Section 5 - Restoration of appeal - Delay - Sufficient cause - Finding of - Sustainability - Court has the power to condone delay on showing of sufficient cause to do substantial justice - In the case Union of India has presented application with 49 days delay for restoration of appeal dismissed in default - There is sufficient force in the explanation offered by learned Assistant Solicitor General of India on behalf of appellant that there were changes in the set up of Standing Counsel of Union of India from 1989 to 2005 - The present Solicitor General of India was not aware about the listing of matter for final hearing, therefore, there had been bona fide error on their part - The respondents have not controverted these facts - So it cannot be held that there is no sufficient cause for condonation of delay - That apart if the appeal is lost by Government no person is individually affected but what in the ultimate analysis suffers is public interest - Implicit in the very nature of Government functioning is procedural delay incidental to decision making process - And, therefore, some what different approach is required to be taken when Government is party to litigation - Learned Counsel for respondents have objected to the form of affidavit filed by deponent on behalf of Government but same not very serious and solely on such technical grounds application for condonation of delay and restoration of appeal cannot be rejected.
Held :
It is settled law that the legislature has conferred power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court [Para 3.4]
In litigations to which Government (either State or Central) is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. However, when Government is there, a somewhat different complexion is imparted to the matter where Government makes out a case where public interest is shown to have suffered owing to acts of fraud or bad faith. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. And therefore somewhat different approach is to be taken when the Government is party in the limitation. [Para 3.5]
Even otherwise having considered the rival submissions the Court finds that the delay is required to be condoned. It is no doubt true that the matter has been dismissed for want of prosecution on 31.08.2005 when nobody appeared on behalf of the appellants. However, we see considerable force in explanation offered by the learned Assistant Solicitor General of India that there were changes in the set up of Standing Counsel of the Union of India from 1989 to 2005. The present Asst. Solicitor General of India was not aware about the listing of the matter for final hearing and, therefore, there is a bonafide error on their part. The Department was not aware about the same because normally in the High Court the Department was represented through Standing Counsel of the Central Government. So in Courts view the Central Government has been able to show "sufficient cause" and therefore delay in filing this application is required to be condoned and is accordingly condoned. [Para 4]
Law Laid Down :
Sufficient Cause has to be liberally construed particularly when Government is a party.
Case Law Analysis :
A.K.K. Nambiar vs. Union of India, AIR 1970 SC 652 [Para 3.2];; Damodaran Pillai vs. South Indian Bank Ltd., AIR 2005 SC 3460 [Para 3.2];; Collector, Land Acquisition, Anantnag vs. Katiji, AIR 1987 SC 1353 [Para 3.4];; G. Ramegowda vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 [Para 3.5];; Special Tehsildar, Land Acquisition, Keral vs. K.V. Ayisuma, AIR 1996 SC 2750 [Para 3.6];; State of Haryana vs. Chandra Mani, AIR 1996 SC 1623 [Para 3.6];; State of Bihar vs. Kameshwar Prasad Singh, AIR 2000 SC 2306 [Para 3.7];; State of Nagaland vs. Lipok AO, 2005 AIR SCW 1748 [Para 3.8].-Relied on
Conclusion :
In view of Government being party and sufficient explanation given for non-appearance of Counsel on the day appeal was dismissed for default, Court condoning delay ordered restoration of appeal.
Decided in Favour of :
Applicant
Application Allowed
( 1 ) CIVIL Application No. 12410 of 2005 has been filed by Union of India and other applicants, original appellants, seeking condonation of delay of 49 days in filing the restoration application being Misc. Civil application Stamp No. 2879 of 2005. The first Appeal came to be dismissed for want of prosecution on 31st August 2005 by a division Bench of this Court (Coram: r. S. Garg and K. M. Mehta, JJ ). At the time of hearing the Civil Application for condonation of delay of which rule has been issued and duly served on the respondents, learned advocate Shri s. M. Shah appearing for the respondents with learned advocate Shri M. A. Parekh submitted that both the applications, i. e. Civil Application lor condonation of delay as well as the Misc. Civil Application for restoration of the First Appeal be heard together. He submitted that since the grounds available to the respondents to oppose condonation of delay and restoration of appeal are common, both the applications be heard simultaneously. At his request, therefore, Civil Application for condonation of delay as well as Misc. Civil application for restoration were heard together. "to complete the formalities, therefore, Office shall give regular number to the Misc. Civil Application in which rale is hereby issued which is waived by learned advocate Shri M. A. Parekh for the respondents. "
( 2 ) WE have heard Mr. Jitendra Malkan, learned Assistant Solicitor General of India for Union of India and on behalf of the opponent we have heard Mr. S. M. Shah, learned advocate with Mr. M. A. Parekh, learned advocate. (1 ). Mr. Jitendra Malkan, learned Asst. Solicitor General of India, for the applicant states that the appellant originally filed the aforesaid First Appeal before this Court challenging the judgement and decree passed by the learned Civil Judge (Senior division), Anand, in Special Civil Suit No. 67 of 1989 on 3. 12. 1997 whereby the suit filed by Shri Somabhai Ranchhodbhai patel, original respondent herein, was partly allowed and decree in favour of the original respondent was passed for a sum of Rs. 9,33,378/- along with interest at the rate of 6% from the dale of suit, i. e. 16. 3. 1982 together with costs. (2 ). The aforesaid appeal was admitted by the Division Bench of this Court by order dated 3. 11. 1989. The aforesaid matter was placed for hearing before this Court (Coram: R. S. Garg and K. M. Mehta, JJ) on 30. 8. 2005. On that day nobody appeared on behalf of the appellant. So the Division bench kept the matter on 31. 8. 2005. On 31. 8. 2005 also as nobody appeared for the appellant, the Court dismissed the appeal for want of prosecution.
( 3 ) MR. Malkan, learned Asst. Solicitor general of India, states that when the aforesaid appeal was admitted on 3. 11. 1989 and when the matter was actually heard on 30. 8. 2005, the learned central Government Standing Counsel appearing at the relevant point of time had been changed. The Department could not apprise the newly appointed Assistant solicitor General as the Department was not aware about the listing of the matter before the Court. Thereafter, the department came to know about the dismissal of the matter only on 27. 10. 2005 when the appellant received copy of the order passed by this Court from the learned civil Judge (S. D.), Anand, on that day. (1 ). Thereafter, the appellant had taken immediate steps for filing an application for restoration of the matter and the same is filed on 16. 11. 2005. Mr. Malkan has stated that the appellant before this Court is central Government and when the appeal was pending since 1989 till 2005 several standing Counsel have been changed. The present Asst. Solicitor General of India who normally appears on behalf of the union of India was not aware of this fact and ultimately the Court has dismissed the matter for want of prosecution. He states that the appeal involves question of large amount and if the present order would continue then the respondent will receive
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
