Hardy and Deshpande
(1) This appeal under Clause 10 of the letters Patent is directed against the judgment of a learned Single Judge of this Court dated 13-3-1970 whereby the writ petition filed by the respondent under Articles 226 and 227 of the Constitution was allowed. The appellants are Union of India and the Railway Board, New Delhi.
(2) At the hearing of the appeal, a preliminary objection has been raised by the counsel for the respondent to the effect that the appeal is barred by time. The appellants have also filed an application (C.M. No. 1303 of 1970) for condensation of delay under section 5 of the Limitation Act, 1963 setting out the facts on which it is said that there was sufficient cause for the delay in filing the appeal, being condoned.
(3) The facts are that the judgment of the learned Single Judge was delivered on 13-3-1970. An application for grant of copies was filed on behalf of the appellants on 17-3-1970. The copy was ready on 31-8-1970 and delivery was taken by the counsel for the appellants on 2-9-1970. The appeal was filed on 3-10-1970. It is common ground that if the time taken by the appellants in taking delivery of the copy which was ready on .31-8-1970 is allowed the appeal should have been filed on 29-9-1970. There was thus a delay of 3 days in filing the appeal. On the other hand if no such time is allowed to the appellants the appeal was delayed by 5 days.
(4) According to the appellants, although the delivery of the copy was taken by the counsel for the appellants on 2-9-1970 it was sent to the Law Officer of the Northern Railways, New Delhi on 8 9-1970 with the counsel's letter asking for instructions for filing the appeal. As the respondent was working as an Officiating Chief Engineer in the North Eastern Railway, whose head office is at Gorakhpur, the record of the case with the copy of the judgment was forwarded on JO-9-1970 to that office by the Officer, Northern Railway, New Delhi, for decision about the filing of the appeal. The copy was received at Gorakhpur on 14-9-1970 and after departmental nothings the file was sent on 17-9-1970 to the Law Officer of the North Eastern Railway, Gorakhpur, for his opinion. The said Officer returned the file on 19-9-70 but since the record of the case was heavy, the North Eastern Railway took time to consider the matter and take a decision.
(5) According to the appellants, the question of filing an appeal had to be considered by the Financial Adviser and Chief Accounts Officer as well as the General Manager and they referred the matter to the Railway Board, New Delhi by a letter dated 26-9-1970 which was received at New Delhi on 26-9-1970. ,
(6) We have already said that if the date of delivery of the copy by the counsel for the appellants was to be taken as 2-9-1970 the appeal should have been filed on 29-9-70. On the other hand, since the copy was ready on 31-8-70 and if that date is to be taken as the date on which delivery of the copy should have been taken by the counsel for the appellants, the appeal should have been filed on 27.9-1970. In any case, the appeal was barred by time if it was not filed on 29-9-1970.
(7) According to the appellants, the Railway Board finally took the decision to file an appeal on 2-10-1970, and instructed the counsel to take necessary steps in that direction and that is how the appeal was filed on 3-10-1970.
(8) We find from the calendar that October 1, 1970 was declared a holiday on account of the death of President Nasser of Uar while October 2, 1970 was also a holiday being Gandhi Jayanti Day and that is why the appeal was filed on October 3, 1970,
(9) The question for consideration however is that if the last date for filing the appeal was 29-9-1970 and 30-9-1970 was also a working day why was the decision to file an appeal taken by the Railway Board on 2-10-1970, particularly when the Railway Board itself had received the papers from Gorakhpur on 26-9-1970.
(10) Counsel for the appellants conceded that it is necessary for the appellants to explain the cause of each day's delay, but no Explanationn is to be found in the application under Section 5 of the Limitation Act, or in the supporting affidavit, as to why the decision to file an appeal was not taken by the Board on 27-9-1970 or 29-9-1970 or even on 30-5-70 when all these days were working days. On the other hand, the decision to file an appeal was itself taken on 2-10-1970 i.e. 3 or 5 days after the appeal had become barred by- time. It is well-known that once limitation has run out its operation cannot be stayed by any action taken by the appellants after that date. Counsel for appellants invited our attention to the following deci- sions :- 1. M/s, K.R. Beri and Co. and others v. Employees' State Insurance Corporation (1962 Punjab 308). 2. Shakuntala Devi Jain Vs . Kanta Kumari and others : 1SCR1006 . Shakuntala Devi Jain v. Kanta Kumary & others 1968 Dlt 528, and submitted that in the case of Government, public interest has to be duly considered and comparatively speaking longer time must be required for inquiry and consideration before a final decision is taken and acted upon. There if thereforee difference in exercise of discretion in respect of an individual litigant and a Government department. He also submitted that the words ''sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellants.
(11) There is no quarrel with the proposition of law advanced by the counsel for the appellants but we fail to see how a discretion can be exercised in favor of the appellants when they have not chosen to give any Explanationn for the delay in filing the appeal for 3 to 5 days. Assuming that the appellants counsel was not required to chase the Copying Agency to take delivery of the copies on 31-8-1979 and thereforee it should be held that 2-9-1970 when copy was actually taken by the counsel be treated as the date, requisite for obtaining a certified copy of the judgment. But even on that basis the appeal should have been filed on 29-9-1970 particularly when the Railway Board New Delhi had received papers on 26-9-1970 and a decision to file the appeal had already been taken by the Financial Adviser and Chief Account Officer as well as the General Manager of North Eastern Railway, Gorakhpur. All that was to be done was to forward the papers to the counsel for the appellants. This could have been done on 28-9-1970 or in any case on 29-9-70 and .the appeal could have been filed on 30-9-1970. In the absence of any such Explanationn we regret it is not possible for us to condone the delay. The appeal having been filed beyond time and there being no sufficient cause for the delay, the preliminary objection is accepted.