REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.2075 of 2010
(Arising out of S.L.P. (C) No.10965 of 2009)
Oriental Aroma Chemical Industries Ltd. …Appellant
Versus
Gujarat Industrial Development Corporation …Respondents
and another
J U D G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. Whether the Division Bench of Gujarat High Court was justified in
condoning more than four years’ delay in filing of appeal by the
respondents against judgment and decree dated 30.10.2004 passed by
Civil Judge (Sr. Division) Gandhinagar (hereinafter referred to as “the trial
Court”) in Special Civil Suit No.32 of 2001 is the question which arises for
consideration in this appeal.
2
3. The appellant was allotted a piece of land for setting up an industrial
unit at Ankleshwar subject to the terms and conditions embodied in
agreement of licence dated 2.4.1976 which, among other things, provided
for consumption of specified quantity of water by the appellant. The
agreement also provided for payment of 70% of the cost of agreed quantity
of water irrespective of consumption. In 1982, respondent No.1 demanded
non utilization charges amounting to Rs.4068/-, which were deposited by
the appellant. After some time, respondent No.1 demanded Rs.2,69,895/-
towards water charges. For next 10 years, the parties entered into long
correspondence on the issue of levy of water charges, etc. Finally,
respondent No.1 issued bill dated 13.1.1996 requiring the appellant to pay
Rs.22,96,207/- towards water charges. The appellant challenged the
same in Special Civil Suit No.32 of 2001. The summons issued by the trial
Court were duly served upon the respondents but no written statement
was filed on their behalf to controvert the averments contained in the plaint
and none appeared on the dates of hearing despite the fact that the case
was adjourned on more than one occasion. The suit was finally decreed
on 30.10.2004 and it was declared that the appellant is not liable to pay
Rs.22,96,207/- by way of minimum charges for water for the period
between 1978 and 16.4.2001 and, thereafter, till the water was supplied by
respondent No.1. After few months, the appellant filed another suit which
was registered as Civil Suit No.222 of 2005 and prayed that respondent
3
No.1 be directed to issue no objection certificate in its favour. The
summons of the second suit were also served upon the respondents, but
neither the written statement was filed nor any one appeared on their
behalf. The second suit was also decreed on 12.12.2007 and respondent
No.1 was directed to issue no objection certificate to the appellant. In
compliance of the decree passed in the second suit, the concerned
authority of the Corporation issued no dues certificate dated 9.7.2008.
4. After four months and fifteen days of taking action in furtherance of
the decree passed in the second suit, the respondents filed an appeal
against judgment and decree dated 30.10.2004 passed in Special Civil
Suit No.32 of 2001. They also filed an application under Order 41 Rule 3A
of the Code of Civil Procedure read with Section 5 of the Limitation Act for
condonation of delay by making the following assertions:
“1. That this appeal is preferred against the judgment and
decree of the learned Civil Judge (SD), Gandhinagar passed
on 30.10.2004. That the suit was filed for permanent
injunction and declaration and on the ground that the
advocate of the GIDC has appeared but no written statement
was filed and, therefore, the learned Judge resorted to Order 8
Rule 11 of the Civil Procedure Code and granted the
declaration as prayed for in the plaint. That after the decree
being passed, the present plaintiff filed another suit being Civil
Suit No.222 of 2005 and in which the decree was passed on
12.12.2007. That particular decree is to be challenged before
this Honourable Court and, therefore, in 2008, after the
second decree was passed, it was brought to the notice of the
Legal Department as well as to the Executive Engineer at
GIDC, Ankleshwar as to how this has happened and it seems
that because of numerous transfers as well as it is also
4
possible that the party might have arranged or joined hands
with some employee of the Corporation and thereby after
engaging advocate, no body has gone to the advocate for the
purpose of giving instruction or filing the written statement and
as a result thereof, decree is passed and only in the month of
January/February, the law department came to know and
therefore, an inquiry was made into the matter but the GIDC
could not trace out as to at whose hands the mistake or
mischief was done, however, when after inquiry everything
was noticed and, therefore, the application for certified copy
was made on 17.11.2008 and on 18.11.2008, the copy was
ready and the same was sent to the advocate and thereafter
the present appeal is preferred.
2. That a long span from 30.10.2004 to 18.11.2008,
practically four years time is passed and this has happened
only because of some mistake or mischief on the part of the
staff and, therefore, the appeal could not be preferred,
otherwise it is a matter of substantial right of the GIDC where
the water charges are leveled in spite of water being used or
not and when the bills were already drawn, there was not
intention on the part of the GIDC not to contest the suit. But it
is difficult to trace out how this has happened and, therefore,
when the inquiry was conducted in detail, the facts were
brought to the notice and on that basis the cause has arisen to
file this appeal and the delay of 1067 days cause in filing the
appeal is required to be condoned in the interest of justice.”
On notice, a detailed reply was filed on behalf of the appellant in the form
of an affidavit of its Director, Shri Sanjay Kantilal Shah, paragraphs 4.16, 5
and 6 whereof read as under:
“4.16. That the First Appeal preferred by the appellant
has been preferred with Civil Application No.14201 of 2008
and the said application for condonation of delay under Order
41 Rule (3A) read with Section 5 of the Limitation Act. As a
matter of fact, the petitioner company being a Government
Corporation is bound to follow the rules and regulations as it is
and cannot deviate itself from the provisions of law. As a
matter of fact in filing the present First Appeal there is a delay
of more than 4 years. Moreover, in the second suit, the
5
decree and judgment is already passed and thereafter now
the petitioner has no right to challenge the order of the Civil
Suit No.32/2001. But for the reasons best known to the
appellant the correct number of days has not been mentioned
in the condonation of delay application. As a matter of fact,
the petitioner being a Government Corporation has to follow
the rules and regulations strictly and is required to give proper
explanation as to why the Appeal has not been preferred
within the time frame and if they were so, being aggrieved by
the order passed by the Ld. Civil Judge (SD) Gandhinagar. If
the condonation of delay is taken into consideration the said
page is only a 4 pages wherein no proper explanation as to
what the petitioner was doing for the past year has been given
in the said and thereby also the said application is required to
be dismissed in limine.
5. With regard to para -1 of the Civil Application, I most
humbly and respectfully submit that it is true that the decree
passed by the Ld. Civil Judge (S.D) Gandhinagar on
13.10.2004. It is also true that in the said Suit, the advocate
for the GIDC had appeared but had not filed written statement
and therefore, the Ld. Judge has passed the order under the
provisions of the Code of Civil Procedure and granted
declaration as prayed for in the plaint. It is also true that after
decree was passed, the present respondent filed another suit
being Civil Suit No.222/2005 and the said decree was passed
on 12.12.2007. It is not true that in the year 2008 after the
second decree was passed it was brought to the knowledge of
the Legal Department that the earlier decree was required to
be challenged. Lack of legal knowledge cannot be said to be
ground to condone the delay. If the facts had not been
brought well in time then for the said it cannot be said that the
respondent company is required to be punished. As a matter
of fact nothing has been mentioned on Affidavit as to who did
not give proper instructions or as to who had possibly played
the mischief and as to who had joined the hand with the
respondent company. It is only the blame game which is
being played and allegations are being leveled in order to
save its own skin but there is no truth behind the facts
mentioned therein and thereby there is no way as to how the
present application can ever be allowed. Moreover the
respondent is not knowing any persons of the G.I.D.C. (as on
today or at any time).
6
6. With regard to para-2 of the Civil Application, I most
humbly and respectfully say and submit that it is true that
more than 4 years time has been passed from the date of the
decree but as to who has played the mischief or mistake or
had it been intentionally filed within the time frame that is for
the reasons best known to the appellant corporation and that
is something on which the petitioner company would not like to
comment at this juncture. No proper justification or
explanation has been brought on record as to what was
happening for the past 4 years, has also not given anything in
detail and neither true and correct facts have been mentioned
nor the calculation in respect of the days have been made
properly and thereby also on all the said counts, the present
application is required to be dismissed with exemplary cost.”
5. The Division Bench of the High Court referred to the judgments of
this Court in State of Bihar and others v. Kamleshwar Prasad Singh
and another, 2000 AIR SC 2388, N. Balakrishnan v. M. Krishnamurthy,
JT 1998 (6) SC 242, State of Haryana v. Chandra Mani and others AIR
1996 SC 1623, Spl. Tehsildars, Land Acquisition, Kerala v. K.V.
Ayisumma AIR 1996 SC 2750, Punjab Small Industries and Export
Corporation Ltd. and others v. Union of India and others 1995 Suppl.
(4) SCC 681, P.K. Ramachandran v. State of Kerala and another (1997)
7 SCC 566 and Collector, Land Acquisition, Anantnag v. Mst. Katiji
AIR 1987 SC 1353 and condoned the delay by making a cryptic
observation that the cause shown by the respondents is sufficient. The
relevant portion of the High Court’s order is reproduced below:
“Applying the principles laid down by the Supreme Court to the
facts of the present case, we are satisfied that sufficient cause
7
is made out by the applicant for condonation of delay. Over
and above, in view of the fact that reasons mentioned in this
application have not been controverted by the other side and
also in view of the principles governing the discretionary
exercise of power under Section 5 of the Limitation Act, 1963,
we are of the view that sufficient cause has been stated for not
filing the appeal in time and hence, delay caused in filing
appeal is to be condoned and the application is required to be
allowed.”
(Emphasis supplied)
6. Shri L.N. Rao, learned senior counsel appearing for the appellant
argued that the impugned order is liable to be set aside because the High
Court allowed the application for condonation of delay by erroneously
assuming that the delay was of 1067 days only. Learned senior counsel
pointed out that appeal against judgment and decree dated 30.10.2004
was filed on 24.11.2008 i.e., after more than four years, but by scoring out
the figures and words “4 years and 28” in paragraphs 2 and 3 of the
application and substituting the same with figure “1067”, the respondents
misled the High Court in believing that delay was of 1067 days. He then
referred to affidavit dated 16.2.2009 of Shri Sanjay Kantilal Shah to show
that substantial grounds had been put forward on behalf of the appellant
for opposing the respondents’ prayer for condonation of delay of more than
four years and submitted that the Division Bench of the High Court
committed serious error in condoning the delay by assuming that no reply
had been filed by the appellant. Learned senior counsel also invited the
Court’s attention to affidavits dated 25.11.2009 and 4.2.2010 of Shri Pravin
8
Keshav Lal Modi and Shri Harishbhai Patel respectively filed in this Court
on behalf of the respondents as also the list of events attached with the
second affidavit to show that the functionaries of respondent No.1 were
very much aware of the proceedings of Special Civil Suit No.32 of 2001
and Civil Suit No.222 of 2005 and submitted that the High Court should not
have accepted patently incorrect assertions contained in the application for
condonation of delay, which was supported by an affidavit of none else
than the General Manager of respondent No.1, Shri R.B. Jadeja, that the
Law Department came to know about the judgment of Special Civil Suit
No.32/2001 only in January/February, 2008.
7. Shri Anip Sachthey, learned counsel for the respondents fairly
admitted that the appeal was filed after lapse of more than four years of
judgment dated 30.10.2004 but submitted that this Court should not
interfere with the discretion exercised by the High Court to condone the
delay and the respondents should not be penalized simply because the
advocates appointed by the Corporation did not bother to file written
statement and appear before the trial Court on the dates of hearing.
Learned counsel emphasized that this Court has repeatedly taken
cognizance of the lethargy and callousness with which litigation is
conducted on behalf of the State and its agencies/instrumentalities at
various levels and condoned the delay so as to enable them to contest the
9
matters on merit and submitted that similar approach may be adopted in
the present case and the appellant may be compensated by award of
adequate cost.
8. We have considered the respective submissions. The law of
limitation is founded on public policy. The legislature does not prescribe
limitation with the object of destroying the rights of the parties but to ensure
that they do not resort to dilatory tactics and seek remedy without delay.
The idea is that every legal remedy must be kept alive for a period fixed by
the legislature. To put it differently, the law of limitation prescribes a period
within which legal remedy can be availed for redress of the legal injury. At
the same time, the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy within the
stipulated time. The expression “sufficient cause” employed in Section 5 of
the Indian Limitation Act, 1963 and similar other statutes is elastic enough
to enable the courts to apply the law in a meaningful manner which sub
serves the ends of justice. Although, no hard and fast rule can be laid
down in dealing with the applications for condonation of delay, this Court
has justifiably advocated adoption of a liberal approach in condoning the
delay of short duration and a stricter approach where the delay is
inordinate – Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)
2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and
10
Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with
the applications for condonation of delay filed on behalf of the State and its
agencies/instrumentalities this Court has, while emphasizing that same
yardstick should be applied for deciding the applications for condonation of
delay filed by private individuals and the State, observed that certain
amount of latitude is not impermissible in the latter case because the State
represents collective cause of the community and the decisions are taken
by the officers/agencies at a slow pace and encumbered process of
pushing the files from table to table consumes considerable time causing
delay – G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC
142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P.
v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu
(1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752,
and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582.
9. In the light of the above, it is to be seen whether the respondents
had offered any plausible/tangible explanation for the long delay of more
than four years in filing of appeal and the High Court was justified in
condoning the delay.
10. A reading of the impugned order makes it clear that the High Court
did make a bald reference to the application for condonation of delay filed
11
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.
12
11. The statement containing the list of events annexed with the affidavit
of Shri Harishbhai Patel shows that before filing suit, the appellant had
issued notice dated 5.2.2001 to which respondent No.1 sent reply dated
13.3.2001. The summons of Special Civil Suit No. 32/2001 instituted by
the appellant were served upon the respondents sometime in the month of
April/May 2001. On 16.5.2001, General Manager (Law) instructed Ms.
Rekhaben M. Patel to appear on behalf of the respondents. Executive
Engineer, Ankleshwar was also directed to contact the advocate for
preparing the reply affidavit. On 23.5.2001, Deputy Executive Engineer,
Ankleshwar forwarded the comments to Ms. Rekhaben M. Patel. On
18.4.2002, the appellant filed an application for ex parte proceedings
against the respondents. On 30.11.2002, the trial Court directed the
respondents to appear on 12.12.2002 with indication that if they fail to do
so, ex parte proceedings will be held. Thereupon, General Manager (Law)
wrote letter dated 10.12.2002 to Ms. Rekhaben to remain present on the
next date of hearing i.e., 12.12.2002. On 30th December, 2002, Deputy
Executive Engineer, Ankleshwar wrote to the advocate in the matter of
submission of para-wise comments. On 2.1.2003, the Executive Engineer
is said to have sent a letter to the advocate informing her about the next
date of hearing i.e., 10.1.2003 and asked her to remain present. After
almost one year and ten months, the trial Court pronounced the ex parte
judgment and decreed the suit. The summons of the second suit were
13
received sometime in May, 2005. On 20.6.2005, Shri B.R. Sharma,
Advocate was instructed to appear on behalf of the respondents. On
10.1.2006, Deputy Executive Engineer, Ankleshwar informed the new
advocate about the next date of hearing which was 23.1.2006. The
second suit was decreed on 12.12.2007.
12. During the course of hearing, learned counsel for the respondents
fairly conceded that in the second suit filed by the appellant there was a
specific mention of decree dated 30.10.2004 passed in Special Civil Suit
No. 32/2001. He also conceded that even though the first suit remained
pending before the trial Court for three years and five months and the
second suit remained pending for more than two years, none of the officers
of the Law Department or the Engineering Department of respondent No.1
appeared before the Court.
13. From what we have noted above, it is clear that the Law Department
of respondent No.1 was very much aware of the proceedings of the first as
well as the second suit. In the first case, Ms. Rekhaben M. Patel was
appointed as an advocate and in the second case Shri B.R. Sharma was
instructed to appear on behalf of the respondents, but none of the officers
is shown to have personally contacted either of the advocates for the
purpose of filing written statement and preparation of the case and none
14
bothered to appear before the trial Court on any of the dates of hearing. 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. 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.
14. 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. As a corollary, the appeal filed by the
15
respondents against judgment and decree dated 30.10.2004 shall stand
dismissed as barred by time. However, it is made clear that the disposal of
this appeal shall not absolve the higher functionaries of respondent No.1
from the responsibility of conducting a thorough probe into the matter so
that accountability of the defaulting officers/officials may be fixed and the
loss, if any, suffered by respondent No.1 recovered from them after
complying with the rules of natural justice.
………………………………..J.
[G.S. Singhvi]
………………………………..J.
[Asok Kumar Ganguly]
New Delhi,
Dated: February 26, 2010.
advocatemmmohan 
Discussion
Comments are closed.