D.G Kamik, J.:— Rule. By consent, Rule is made returnable forthwith.
2. Heard Counsel for the parties.
3. This revision application is directed against the decision of the District Judge, Dhule rendered on 2nd July, 2004 allowing Misc. Civil Application No. 82 of 1998 filed by the respondent for condonation of delay in filing of an appeal.
4. The appellant filed a suit bearing Regular Civil Suit No. 178 of 1987 against the respondent Municipal Council for perpetual injunction restraining it from demolishing the business premises of the applicant. The suit was filed on account of a notice issued by the respondent-Municipal Council to the applicant for removal of a structure allegedly erected by him unauthorisedly on a public road belonging to the Municipal Council. By a judgment and order dated 6th May, 1995, trial Court decreed the suit and granted injunction restraining the respondent Municipal Council from demolishing the illegal structure unless suitable alternative business premises were made available to the applicant by the respondent Municipal Council. The respondent did not file an appeal against the decision within the statutory period of limitation but an appeal was filed nearly after three years along with an application for condonation of delay. In the application for condonation of delay, the respondent gave following reasons which constituted sufficient cause for the delay. They are—
I. The President and four Chief Officers were transferred during the period till 6-5-1995 till date of the filing of the appeal. President of the Municipal Council was also changed. Many other officers were also transferred or changed because of many changes which occurred in the administrative set up of the Municipal Council, administrative delays were caused resulting into delay of the filing of the appeal.
II. The respondent was a local body and one Mr. C.P Gilani was the President of the Municipal Council from 17-12-1991 to 21-1-1996. He was belonging to Sindh community and he was leader of Sindhi community. Several traders of Sindhi community had committed a large scale encroachment on the jail road and had erected illegal structures on the public road. C.P Gilani and/or his son was also one of such encroachers and was running liquor shop in the encroached portion. All the shop keepers had filed similar suits and had obtained injunction. He was, therefore, interested in ensuing that no appeal was filed challenging the decision of the Civil Court. He undoubtedly influenced the Chief Officer of the Municipal Council who was working under the President not to file the appeals. Therefore, the appeal could not be filed while Mr. Gilani was the President.
III. New elections to the Municipal Council were held on 2-12-1996. There was a litigation regarding the seat of the President and the litigation was pending before the High Court for suitable period of time and a new President was elected very recently.
IV. The Advocate for the Municipal Council was seriously ill for many months and, therefore, he shifted for practice to Aurangabad in the High Court and a new Advocate was appointed. This also caused the delay in filing the appeal. The evidence on the application was adduced in the form of affidavits and no oral evidence was adduced. After considering the evidence adduced by the parties, the learned District Judge, Dhule came to a conclusion that the delay was satisfactorily explained and there was sufficient cause for the delay caused in filing of the appeal. Consequently, the learned District Judge allowed the application and condoned the delay. Aggrieved applicant has filed the revision application.
5. Learned Counsel for the applicant submitted that the grounds mentioned above do not constitute a sufficient cause within the meaning of section 5 of the Limitation Act. He submitted that the delay was gross, of nearly three years and, therefore, it ought not to have been condoned. He submitted that the Court cannot and should not make any distinction between a private party and the Government and/or a local body in the matter of consideration of sufficient cause for the delay. In support, he referred to and relied upon a decision of the Supreme Court in P. K Ramchandran v. State of Kerala, (1997) 7 SCC 556 : AIR 1998 SC 2276. He also referred to and relied upon a decision of a Division Bench of this Court in State of Maharashtra v. Shri Vithu Kalya Govari, 2008 (6) Mh.L.J 239 : 2008 (4) All MR 856.
6. Per contra, Mr. Shah, learned Senior Advocate appearing for the respondent, submitted that though the principle that the law of limitation applies to the Government as it applies to the private citizen cannot be doubted, different considerations may apply while considering whether the cause for the delay constituted sufficient cause within the meaning of section 5 of the Limitation Act. In support, he referred to and relied upon decision of the Supreme Court in G. Ramegowda Major, etc. v. The Special Land Acquisition Officer, (1988) 2 SCC 142 : AIR 1988 SC 897. He further submitted that the Court must adopt a liberal approach in the matters of condoning the delay as was done by the District Court in the present case. The Court must remember that refusing to condone delay can result in a meritorious case being thrown out thereby defeating the cause of justice. The words ‘sufficient cause’ employed in section 5 of the Limitation Act are sufficiently elastic to enable the Courts to apply the law in a meaningful manner to subserve the ends of justice. In support, he referred to and relied upon a decision of the Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1352. He further submitted that in any event, where a Court accepts the explanation for the delay as sufficient the superior Court should not disturb such finding, much less in revisional jurisdiction. In support, he referred to and relied upon decisions of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy., (1998) 7 SCC 123 and Brij Gopal Mathur v. Kishan Gopal Mathur, (1973) 1 SCC 635.
7. In P.K Ramachandran v. State of Kerala (supra) relied upon by the Counsel for the applicant, the State of Kerala had filed appeal, which was barred by 565 days, along with an application for condonation of delay. The High Court allowed the application and condoned the delay. Setting aside the order of the High Court, the Supreme Court held that the law of limitation might harshly affect a particular party but it had to be applied with all its rigour when the statute so prescribed and the Courts had no power to extend the period of limitation on equitable grounds. The Supreme Court held that the reason given in the application for condonation of delay and accepted by the High Court as sufficient cause namely; that the Advocate General's office was fled up with many arbitration matters of equal importance was not a sufficient cause. Though undoubtedly law of limitation must apply to a Government as it applies to private citizen, Supreme Court does not appear to have laid down here that there cannot be some special circumstances which are referrable only to the Government or public bodies which may not be applicable in respect of private citizens. On the other hand, the decision of the Supreme Court in G. Ramegowda v. Special Land Acquisition Officer (supra) has held that certain amount of latitude to the Government is not impermissible and it would be unfair and unrealistic to put the Government and private parties on the same footing in all respects. In paragraph 8 of the decision, the Supreme Court has observed:
The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
Therefore, in assessing what, in a particular case, constitutes ‘sufficient cause’ for purposes of section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitute is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have ‘a little play at the joints’. Due recognition of these limitations on Governmental functioning – of course, within a reasonable limit — is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government 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.
8. In Collector, Land Acquisition v. Mst. Katiji (supra), the Supreme Court reiterated its practice of adopting liberal approach in condoning the delay in matters instituted in the Supreme Court. It held that the message (of adopting liberal approach) had not percolated down to all the other Courts in the hierarchy and made the following consideration—
And such a liberal approach is adopted on principle as it is realized that:—
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 non-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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
9. Aforesaid decisions of the Supreme Court make it clear that a liberal approach is required to be adopted in the matter of condonation of delay. This is based inter alia on the principle that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and it is expected to do so. Though it cannot be disputed that law of limitation applies equally to the Government as also to the local bodies as it applies to a private citizen, a somewhat different complexion is imparted to the matter where the Government or a Public body makes out case the public interest would suffer owing to the acts of fraud or bad faith on the part of its officer or agent. In the present case, it was specifically alleged that the President himself was a land encroacher and had erected an illegal structure on the public road. He was interested to see that the appeals were not filed against the decision/s of the Civil Court restraining the removal of the encroachment except after offering alternative premises to the encroachcrs. Though the power to institute or defend suits is conferred on the Chief Officer under section 301 of the Maharashtra Municipal Council, Nagar Parishad and Industrial Townships Act, 1965, clause (a) of sub-section (1) of section 77 thereof provides that the Chief Officer shall exercise powers while performing his duties subject to control, direction and supervision of the President. Thus, the Chief Officer was required to work under the control, direction and supervision of the President who was interested in ensuring that the appeal were not filed. Furthermore, there were four transfers of the Chief Officers and some track must have been lost in the process especially when the President was interested to ensure that the appeals were not be filed. The view taken by the District Judge, that there was sufficient cause for the delay is, in my view a possible view which is not open for interference in exercise of revisional jurisdiction.
10. The powers of a High Court to entertain a revision are circumscribed by section 115 of the Code of Civil Procedure. Section 115 of the Code of Civil Procedure empowers the High Court to entertain a revision against the decision of the subordinate Court only where the subordinate Court appears—
(a) to have exercised jurisdiction not vested in it by law.
(b) to have failed to exercise jurisdiction so vested or
(c) to have acted in exercise of its jurisdiction illegally or with material irregularity.
11. None of the grounds for entertaining the revision, in my view, exists in the present case. When an appeal is filed along with an application for condonation of delay, undoubtedly, the appeal Court is required to consider whether there was a sufficient cause or not for the delay. The appeal Court thus had the jurisdiction to consider whether there was a sufficient cause for the delay. No illegality nor any material irregularity in exercise of the jurisdiction in considering the issue whether there was sufficient cause was brought to my notice by the Advocate for the applicant. In the circumstances, in my view, this Court, as a revisional Court, has no jurisdiction to entertain revision against the decision rendered by the lower appellate Court about existence of a sufficient cause. In Brijlal Mathur (supra), the Supreme Court has held that the question whether there was sufficient cause for the delay was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly. Thus, even a wrong decision on the question of the existence of sufficient cause by the Court below is not open for challenge in exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure.
12. A reference must be made to a comparatively recent decision of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy. (supra). Therein the Supreme Court was required to consider limits of power of a revisional Court in entertaining a revision against the order of the Court condoning the delay. In paragraph 9 of the decision, the Supreme Court has observed:
“Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.”
13. The delay has been condoned by the appellate Court. The discretion exercised by the Court in condoning the delay would not ordinarily be disturbed by the superior Court much less in revisional jurisdiction unless the exercise of discretion was wholly on untenable grounds or arbitrary or perverse. But where the delay has been refused to be condoned the superior Court would be free to consider the cause for the delay afresh and come to its own conclusion untrammelled by the conclusions of the lower Court. In the present case, delay has been condoned. The discretion in condoning the delay has been exercised properly and certainly not perversely. Therefore, exercise of such discretion cannot be challenged in a revision. In my view, therefore, there is no merit in the revision application and the same is dismissed with costs. Rule is discharged.
14. Learned Counsel for the applicant prays for the stay of this order. No executable order has been passed. In the circumstance, there is no question of granting of stay to the order. Request is accordingly rejected.
Revision application dismissed.