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Revenue Divisional Officer, Vijayawada Vs. T. Laxminarayana - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 4374, 5323, 5331, 4392 and 6966 of 1973
Judge
Reported inAIR1975AP109
ActsLimitation Act, 1963 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 149 - Order 7, Rule 11
AppellantRevenue Divisional Officer, Vijayawada
RespondentT. Laxminarayana
Appellant AdvocatePrincipal Govt. Pleader
Respondent AdvocateY.B. Tata Rao and ;N. Bhaskara Rao, Advs.
DispositionAppeal dismissed
Excerpt:
.....1963 , section 149 and order 7 rule 11 of code of civil procedure, 1908 - government made delay in filing appeal - whether government hold position of any greater privilege than other litigant - delay was due to routine and leisurely inter departmental consultation in filing appeal by government - held, delay unreasonable and can not be condoned. - - had condemned in very strong terms in the full bench decision of 'in the matter of an advocate'.(1939) 1' mad lj 564 at p. the learned chief justice had observed ;at the same time it is obvious from the respondent's own evidence that the filing of the memorandum of appeal on the last day of limitation knowing full well that it wag understamped and hoping that the court would be persuaded to accept the deficiency later is certainly not..........cannot claim greater privileges than other members of the bar. we regret to note that in several cases government pleaders have presented appeals with token court-fee and thereby they have not observed the high standard of conduct expected of them. if the government pleader or any other advocate is not placed in possession of sufficient funds for payment of proper court-fee his plain duty is to refuse to file the appeal until he is placed in possession of necessary funds. we are constrained to make these observations because of the very casual wav in which appeals are filed by the government pleaders on behalf of the government long after the expiry of the period of limitation and with token court-fee. we are anxious that the element of casualness should cease and therefore we are.....
Judgment:

Chinnapa Reddy, J.

1. The question for consideration in this batch of petitions is whether the Government and the Government Pleaders hold a position of any greater privilege than other litigants and their lawyers. We are forced to pose the question in this blunt fashion because day after day we are faced with applications made by the Government Pleaders on behalf of the Government to condone enormous delays in preferring appeals and in paying proper court-fee. Now, the Limitation Act makes no distinction between the Government and other parties who come to the High Court with appeals in civil cases. We may notice that in Criminal cases a slight distinction is made between appeals filed by the State from orders of acquittal for which the Limitation Act provides ninety days and appeals by convicted persons against judgments of conviction for which the Act provides sixty days only. We may also note with satisfaction that hardly ever an application is made by the Public Prosecutor on behalf of the State to condone delay in filing an appeal against an order of acquittal. In civil cases Article 116 of the Limitation Act provides for the same period of ninety days whether the appeal is by the State or by a private party. The legislature though fully cognizant-after all it is the Government that pilots these Bills through the Legislature-of the delays likely to be caused by procedures adopted in the Secretariat and other departments, has deliberately refrained from making any special provision in the case of appeals preferred by the State. We cannot make exceptions where the Legislature has refrained from making them. We cannot allow applications to condone delays caused by mere routine departmental consultations and communications. It is for the executive Government to devise suitable procedures to avoid such delays.

Of course, Section 5 of the Limitation Act empowers the Court to admit an appeal after the period of Limitation prescribed therefor if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. The provision vests the Court with a discretion. But the discretion isa judicial and not an arbitrary discretion. Every party has a right to treat the decree of a lower Court as final and this substantive right to finality of a decree has always been considered to be of such a valuable kind that a party should not lightly be deprived of it. We cannot consider routine and leisurely departmental consultations and communications as affording sufficient cause to admit appeals preferred after the expiry of the period of limitation. But we do not mean to lay down any hard and fast rule. Naturally every case must be decided on its own facts. For example where 3 proposed appeal involves a decision on a matter of policy at the highest executive level it may perhaps be justifiable for a Court to take that circumstance into account in considering whether delay in filing the appeal should be condoned. Again, where there is conflict of legal advices where advice from the top-most legal adviser is considered essential delay in filing an appeal may perhaps be justified. But as observed by us it is difficult to treat delays occurring from routine and leisurely inter-departmental consultation and communication as affording sufficient cause to admit a time barred appeal.

Worse is vet to come. Many of the appeals filed by the Government are filed with token Court-Fee and proper Court-Fee is paid months later, long after the expiry of the prescribed period of limitation. In State of Andhra Pradesh v. Surya Pratap, C. M. P. No. 6697 of 1973 in L. P. A. (S. R. 49772 of 1972) a Division Bench of this Court had occasion to point out that presentation of an appeal with token court-fee was improper presentation and no presentation at all. As long ago as in 1939 Sir Lionel Leach. C. J. had condemned in very strong terms in the Full Bench decision of 'In the matter of an Advocate'. (1939) 1' Mad LJ 564 at P. 567 - (AIR 1939 Mad 1 at D. 2) the practice adopted by certain advocates of filing appeals with deficit court-fee and announced that the Court would not tolerate practices of that nature. The learned Chief Justice had observed ;

'At the same time it is obvious from the respondent's own evidence that the filing of the memorandum of appeal on the last day of limitation knowing full well that it wag understamped and hoping that the Court would be persuaded to accept the deficiency later is certainly not in accordance with the high traditions of the profession to which he belongs. If the real facts did become known to the Court it is obvious that the Court would not allow the deficiency to be paid. Another advocate who had been approached to file the appeal on the terms similar to the arrangement accepted by the respondent refused to file it and the respondent also should have refused to file it unless the full amount of the court-fee was first paid. We are not now considering whether this action of the respondent amounts to professional misconduct. That question is not before us. But this Court will not tolerate practices of this nature.'

2. In Venkataseshamma v. Ranga-naravanamma, : AIR1950Mad769 a Division Bench of the Madras High Court consisting of RaJamannar, C. J. and Chandra Reddi, J. also condemned this Practice and observed :

'We cannot tolerate the practice of filing an appeal with a patently deficit court-fee simply because before the last date of filing the appeal the appellant is unable to secure enough money for payment of the full court-fee and then taking time to raise the deficit amount and get the delay excused as a matter of course.' Government Pleaders like all other advocates are bound to observe the high traditions of the legal profession and they cannot claim greater privileges than other members of the Bar. We regret to note that in several cases Government Pleaders have presented appeals with token court-fee and thereby they have not observed the high standard of conduct expected of them. If the Government Pleader or any other advocate is not placed in possession of sufficient funds for payment of proper court-fee his plain duty is to refuse to file the appeal until he is Placed in possession of necessary funds. We are constrained to make these observations because of the very casual wav in which appeals are filed by the Government Pleaders on behalf of the Government long after the expiry of the period of limitation and with token court-fee. We are anxious that the element of casualness should cease and therefore we are making these observations.

3. In the instant cases before us, it is stated in the affidavit filed in support of the applications that the Principal Government Pleader received the papers for filing appeals on 8-3-1972 and that he filed the appeals on 13-3-1972 with a token court-fee of Rs. 50/- in each case. We may mention that the court-fee pavable in the first of the cases before us was Rs. 2,266/-. The affidavit proceeds to state that the bill for payment of a sum of Rs. 91',972-80 ps. which was required for preferring the batch of appeals was received in the office of the Government Pleader on 14-4-1972. The cheque was cashed and the stamp papers purchased but the court-fee was not paid forthwith. The summer vacation intervened In the meanwhile and the Board of Revenue instructed the Government Pleader to withdraw the appeals. The appeals were not,however, withdrawn for some reason which has not been explained in the affidavit. Thereafter the Board of Revenue once more instructed the Government Pleader by its letter dated 10-11-1972 to file the appeals. Thereupon proper court-fee was paid and the appeals represented to the Court. There was a delay of 394 days in paying deficit court-fee. The facts mentioned in the affidavit disclose no reason at all for condoning the delay. That the Board of Revenue was unable to make up its mind whether to prefer appeals or not does not certainly justify the preferring of appeals with deficit court-fee so as to await the final decision of the Board of Revenue. To encourage such a procedure would be to encourage every litigant to prefer appeals with token court-fee and make up his mind in a leisurely way whether to pursue the appeal or not. We must express our total disapproval of such course. Following the observations of the Full Bench of the Madras High Court underlined by us in the passage already extracted all the applications are dismissed with costs.


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