2010 (2) TMI 1121 - SC - Indian Laws

Appeal allowed; over four years' delay refused condonation under Section 5 due to misleading averments and errors

SC allowed the appeal, set aside the Division Bench order of the HC, and dismissed the application for condonation of delay. The HC erred in ... Condonation of delay in filing the appeal - plausible/tangible explanation - Whether the Division Bench of Gujarat High Court was justified in condoning more than four year's delay in filing of appeal by the respondents against judgment and decree dated 30.10.2004 passed by Civil Judge (Sr. Division) Gandhinagar ? HELD THAT:- The High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. It may have been possible for this Court to ignore the first error in the impugned order because by deleting the figures and words “4 years and 28” in paragraphs 2 and 3 of the application and substituting the same with the figure 1067, the respondents misled the High Court in believing that the delay was of 1067 days only but it is not possible to fathom any reason why the Division Bench of the High Court omitted to consider the detailed reply which had been filed on behalf of the appellant to contest the prayer for condonation of delay. Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the application filed for condonation of delay, the respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. I In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years’ delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act. In the result, the appeal is allowed. The impugned order of the High Court is set aside and the application for condonation of delay filed by the respondents is dismissed. Issues Involved:1. Condonation of delay in filing the appeal.2. Validity of the High Court's order condoning the delay.3. Responsibility and accountability of the respondents' officers.Detailed Analysis:Issue 1: Condonation of Delay in Filing the AppealThe primary issue in this case was whether the Division Bench of the Gujarat High Court was justified in condoning a delay of more than four years in filing an appeal against the judgment and decree dated 30.10.2004 passed by the Civil Judge (Sr. Division) Gandhinagar in Special Civil Suit No.32 of 2001. The respondents argued that the delay occurred due to internal miscommunication and alleged mischief by some employees, which prevented them from contesting the suit in a timely manner. They filed an application under Order 41 Rule 3A of the Code of Civil Procedure read with Section 5 of the Limitation Act, seeking condonation of the delay.Issue 2: Validity of the High Court's Order Condoning the DelayThe High Court condoned the delay by referring to various precedents and making a general observation that 'sufficient cause is made out by the applicant for condonation of delay.' However, the Supreme Court found that the High Court had erroneously assumed that the delay was only 1067 days, while in reality, it was over four years. The Supreme Court noted that the High Court failed to consider the detailed reply filed by the appellant and wrongly assumed that no reply had been filed. The Supreme Court emphasized that the law of limitation is founded on public policy to prevent parties from resorting to dilatory tactics and to ensure that legal remedies are sought without undue delay. The Court held that the High Court committed a grave error by condoning the delay without properly evaluating the reasons provided by the respondents.Issue 3: Responsibility and Accountability of the Respondents' OfficersThe Supreme Court highlighted that the Law Department of respondent No.1 was aware of the proceedings of both the first and second suits. Despite this, the officers failed to personally contact the advocates or appear before the trial court on any hearing dates. The respondents' application for condonation of delay contained incorrect and misleading statements, suggesting internal mischief without providing any concrete evidence. The Supreme Court concluded that the respondents did not approach the High Court with clean hands and that the delay was not justified. The Court directed that the higher functionaries of respondent No.1 conduct a thorough probe to fix accountability and recover any losses from the defaulting officers after complying with the rules of natural justice.Conclusion:The Supreme Court allowed the appeal, set aside the High Court's order condoning the delay, and dismissed the application for condonation of delay. Consequently, the appeal filed by the respondents against the judgment and decree dated 30.10.2004 was dismissed as time-barred. The Court also mandated a thorough investigation into the conduct of the respondents' officers to ensure accountability and recovery of any losses.