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Collector of Bilaspur Vs. Santu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. First Appeal Nos. 14, 29, 30 of 1960
Judge
Reported inAIR1962HP16
ActsLimitation Act, 1908 - Section 5
AppellantCollector of Bilaspur
RespondentSantu and ors.
Appellant Advocate R.N. Malhotra, Adv.
Respondent Advocate S.D. Ahluwalia, Adv. for Respondent No. 1
DispositionApplications rejected
Cases ReferredAdi Lakshamma v. Subbarayappa
Excerpt:
.....- applicants contended that as papers had to pass through several hands before appeals could be filed delay should be condoned - in light of precedent appeal has to be filed within prescribed period of time and extension of time under section 5 will not be granted merely on ground that prescribed period of limitation was not sufficient so far as government was concerned - further contention that delay in preferment of appeals if not deliberate should be condoned - delay may not be occasioned deliberately and yet with exercise of due care and attention it may be avoided - discretion vested in court under section 5 must be exercised on judicial principles - in light of precedent even though delay in preferment of appeal may be short it will not be condoned unless even with exercise of..........a copy of the order was made on 16-12-1959 and was furnished to the appellants on 31-12-1959. the period of limitation for the filing of the appeal expired on 6-3-1960 which was a sunday. the appeal was filed on 8-3-1960. it has been alleged in the affidavit filed along with the application under section 5 of the limitation act that on receiving the copy of the order of the court the collector examined fee merits 'f the ease in consultation with the local government advocate and sent the certified copy of the judgment to the executive engineer concerned who after scrutiny returned the same on 5-3-1960. thereafter the certified copy of the judgment was sent by the collector to his counsel by a special messenger on 6-3-1960 which reached him late in the afternoon of the same day. he took.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This is an application under Section 5 of the Indian Limitation Act for condonation of delay in the preferment of miscellaneous First Appeal No. 14 of 1960. Applications for condonation of delay in the filing of Miscellaneous First Appeals Nos. 29 and 30 of 1960 have also been filed and for the sate of convenience, I propose to dispose of the three applications by this order.

2. The order of the learned Additional District Judge which has given rise to Miscellaneous First Appeal No. 14 of 1960, was announced on 80-11-1959. An application for obtaining a copy of the order was made on 16-12-1959 and was furnished to the appellants on 31-12-1959. The period of limitation for the filing of the appeal expired on 6-3-1960 which was a Sunday. The appeal was filed on 8-3-1960. It has been alleged in the affidavit filed along with the application under Section 5 of the Limitation Act that on receiving the copy of the order of the Court the Collector examined fee Merits 'f the ease in consultation with the local Government Advocate and sent the certified copy of the judgment to the Executive Engineer concerned who after scrutiny returned the same on 5-3-1960. Thereafter the certified copy of the judgment was sent by the Collector to his counsel by a special messenger on 6-3-1960 which reached him late in the afternoon of the same day. He took one day in preparing the grounds of appeal and filed the appeal on 8-3-1960.

3. The orders which are the subject-matter of appeals Nos. 29 and 30 were respectively announced on 14-9-1959 and 18-9-1959. Applications for obtaining copies of the aforesaid orders were made on 9-11-1959 and were delivered on 20-1-1960. The affidavits filed along with the applications in those cases reveal the following main facts. The appellant received the certified copies on 22-1-1960, consulted his counsel who submitted his opinion on 28-1-1960. On 5-2-1960 the appellant forwarded the necessary papers to the Executive Engineer. He examined the cases and forwarded the papers to the Director, Inspection and Control, on or about 10-2-1960. He in his turn forwarded the papers to the General Manager, Bhakra Dam on 12-2-1960 who consulted the Legal Remembrancer to Government Punjab on 23-2-1960. The latter forwarded the relevant papers to the appellant's counsel at Simla on 26-2-1960.

On 27-2-1960 the appellant's counsel wrote to the authorities concerned to remit to him the requisite money for the expenses and to send power of attorney. The power of attorney and the R. T. R., presumably an abbreviation for Remittance Transfer Receipt were respectively received on 3-3-1960 and 11-3-1960 and the latter was encashed on 14-3-1960. Appeals were filed on 14-3-1960. Miscellaneous First Appeal No. 29 was filed 19 days and the other 15 days after the expiry of the period of limitation.

4. The opposite party to the application filed In Miscellaneous First Appeal No. 14 of 1960 only was represented by counsel.

5. On behalf of the applicants it has been urged that in the very nature of things the papers had to pass through several hands before the appeals could be filed, that every one concerned dealt with the papers with the utmost speed and as such the delay in the preferment of the appeals should be condoned. In support of that contention reliance has been placed upon a ruling of the Sind Judicial Commissioner's Court reported in Secretary of State v. Gurmukhdas, AIR 1929 Sind 211. The following observations were made in that ruling:-

'The Act makes no distinction between Government and a private individual but it is obvious that in considering an application under Section 5 a distinction must be, made. A private person has only himself to consider and must be presumed to be familiar with every aspect of his case. Government has to consider the public interest and cannot be expected to know the fact of each individual case. They require time for inquiry and consideration before taking action and must consult the local officers, to whom they cannot delegate their powers. It follows that a time which may be ample for a private litigant may be none too great for Government. Further there are difficulties in connection with Sind cases which probably are not felt in any other province'.

There is, if I may say so with respect, a slight contradiction in the aforesaid observations. While it was observed that the Act made no distinction between Government and the private individual, it was later on observed that in considering an application under Section 5 a distinction must be made between a Government and a private individual. It is again respectfully submitted that if a period of limitation provided by law is 'none too great' for the Government there may be a case for the amendment of the law but so long as the law is not amended an appeal etc., has to be fifed within the prescribed period of limitation and an extension of time under Section 5 will not be granted merely on the ground that the prescribed period of limitation was not sufficient so far as, the Government was concerned.

6. The following observations were made in the case of Union of India v. Shri Ram Kanwar, AIR 1958 Punj 365:

'The law of limitation operates equally for or against a private individual as also a Government. No special indulgence can be shown to the Government which in similar circumstances is not to be shown to an individual suitor. If it is felt that the ministries delay matters so much that the periods of limitation already prescribed in the Limitation Act are not long enough for the Government or its agents, then the better course is to obtain amendment of the law through the Legislature rather than to make an application to the Court invoking its power under Section 5 of the Limitation Act.

I am definitely of the opinion that delays in Government offices are no justification for invoking the power of the Court under Section 5. This circumstance cannot be taken into consideration in favour of the appellants.'

I am in respectful agreement with the views expressed in the Punjab case referred to above. A Court of law is not respecter of personalities and should treat the Government and a private individual alike.

7. The decision in the aforesaid Sind case also turned upon the peculiar difficulties obtaining in the province and on that ground also that decision cannot have a persuasive value in the instant cases. The procedure that may be laid down by Government for the examination of the question as to whether an appeal should be filed or not should be such that it can be gone through within the prescribed period of limitation.

8. It is, therefore, not possible to accept the contention that the delay in the preferment of the instant appeals should be condoned because the papers had to pass through several hands before a decision could be taken as to whether the appeals were to be filed or not.

9. The further contention advanced on behalf of the applicants that delay in the preferment of the appeals if not deliberate should be condoned is equally untenable. Delay may not be occasioned deliberately and yet with the exercise of due care and attention it may be avoided.

10. The discretion vested in a Court of law under Section 5 of the Limitation Act must be exercised on judicial principles: and not in an arbitrary, vague or fanciful manner : vide M.F. Almeida v. Ramchandra Santuram, AIR 1938 Bom 408. In Karsondas Dharamsey v. Bai Gungabai, ILR 30 Bom 329 it was held that when time for appealing has expired a very valuable right is secured to the successful litigant; and the Court, must, therefore, be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of time for attacking the decree and thus perhaps depriving the successful litigant of the advantages which he has obtained.

11. Even though the delay in the preferment of the appeals may be short it will not be condoned unless even with the exercise of due care and attention the delay could not have been avoided vide Adi Lakshamma v. Subbarayappa, AIR 1953 Mys 137.

12. I now advert to the facts of the cases under consideration. In the case which has given rise to Miscellaneous First Appeal No. 14 of I960 the relevant papers were sent to the Executive Engineer concerned on 23-1-1960 and were returned by him on 5-3-1960 and apparently the papers remained in his office for an inordinately long time. In the other two cases even the power of attorney and the R. T. R. were not sent to the counsel within the period of limitation. Even if the power of attorney had been sent to him within the period of limitation it might have been possible for him to file the appeals within time. Thus the delay in the preferment of the appeals was not such whidh could not have been avoided With due diligence.

13. I am, therefore, unable to condone the delay and reject the applications.

14. Let a copy of this order be placedin the record of Miscellaneous First AppealsNos. 29 and 30 of 1960.


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