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CODE OF CIVIL PROCEDURE, 1908: Or. 22,r.4 – Abatement of appeal -Inordinate delay in filing application for bringing legal heirs on record and for setting aside abatement – High Court passed a conditional order giving final opportunity to do the needful, failing which the appeal was to stand dismissed-Order not complied with-Subsequently, High Court allowed all applications condoning 3703 days delay in filing the application to bring the legal heirs on record and 883 days delay in filing petition to set aside the dismissal order-Held: Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers- All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law-The discretion has to be exercised in a systematic manner informed by reason-Whims or fancies, prejudices or predilections can not and should not form the basis of exercising discretionary powers-High Court, having recorded its conclusions and findings on the unacceptable explanation for delay, should not have condoned unconscionable delay-Judgment of High Court is unsustainable either in law or in equity and is set aside-Limitation Act, 1963-s. 5. ADMINISTRATION OF JUSTICE: Remarks in judgment of High Court on performance of government pleaders – Appeal filed by State Government, before High court-Inordinate delay on the part of Government pleaders in taking steps to bring heirs and legal representative of the respondent on record-Remarks made by High Court against Government pleaders-Held: High Court has, rather sarcastically, dubbed the government pleaders as without merit and ability-The approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties-The High Court not being satisfied with the use of mere intemperate language, resorted to blatant sarcasms-The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases-The order of the High Court is based purely on the personal perceptions and predilections of the Judges on the bench-The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality-In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the “justice oriented approach”, the bedrock of which is fairness and impartiality-The caustic remarks made by the High Court, against the government pleaders and the Court staff clearly exhibit a departure from settled principles- The judgment of the High Court is unsustainable either in law or in equity and, as such, is set aside- Code of Civil Procedure, 1908-Or. 22, r.4 – Strictures – Judicial restraint. During the pendency of the appeal before the High Court against judgment and decree in a suit for declaration of title and permanent injunction, the plaintiff-respondent died on 25.2.1990 and his counsel filed a memo before the High Court giving the said intimation after notice to the advocate for the appellants. When the appeal came up for hearing on 24.4.1997, the counsel for the plaintiff-respondent again brought to the notice of the High Court the factum of death of his client. Since, inspite of the directions of the High Court, no steps were taken to bring the legal heirs and representatives of the plaintiff-respondent on record, on 6.2.1998, it gave one week’s time for compliance failing which the appeal would stand dismissed. As the order was not complied with, the appeal stood dismissed in terms of the order dated 6.2.1998. In the year 2000, an application was filed by the judgment-debtors before the High Court seeking condonation of 883 days delay in filing the petition to set aside the dismissal order dated 6.2.1998. On 17.8.2000 another application was filed seeking to condone 3703 days delay to bring the legal representatives on record. It was accompanied by an application under Order 22 , Rule 4, CPC. After several adjournments at the instance of the judgment- debtors, the appeal was listed for hearing on 19.8.2003 on which date the High Court allowed all the applications and restored the appeal and posted it for hearing. Aggrieved, the heirs and legal representatives of the plaintiff filed the appeals. =Allowing the appeals, the Court HELD: 1.1. This Court while issuing notice in the SLP had directed proceedings in the appeal pending in the High Court to remain stayed meanwhile. Therefore, it is evident that the situation as on date is as it was when the order was passed on 06.02.1998 i.e. , appeal filed by respondent Nos. 1 and 2 stood abated and, as such, dismissed. [Para 16] [229-C] 1.2. Generally speaking, the courts including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause u/s 5 of the Limitation Act. [para 19] [230-C] Balwant Singh (dead) Vs. Jagdish Singh, 2010 (8) SCR597= (2010) 8 SCC 685; N. Balakrishnan Vs. M. Krishnamurthy 1998 (1) Suppl. SCR 403= (1998) 7 SCC 123; Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. (2003) 10 SCC 691; and Sardar Amarjit Singh Kalra (dead) by LRs Vs. Pramod Gupta (dead) by LRs. 2002 (5) Suppl. SCR350= (2003) 3 SCC 272; and Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. 1987 (2) SCR 387= (1987) 2 SCC 107 – referred to. 1.3. Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, 1963, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies, prejudices or predilections can not and should not form the basis of exercising discretionary powers. [para 26] [234-G-H; 235-A] 1.4. The High Court, in the instant case, graphically narrated the clear dereliction of duty by the government pleaders concerned in not pursuing the appeal before it diligently, and set out the different stages at which the government pleaders had exhibited almost culpable negligence in performance of their duties. It found the justification given by the government pleaders to be unacceptable. Having recorded such conclusions, inexplicably, the High Court proceeds to condone the unconscionable delay. Such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. There does not seem to be any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. [para 24, 25-26] [234-B-C; 235-F; 234-D] 2.1. In the opening paragraph of the impugned order the High Court has, rather sarcastically, dubbed the government pleaders as without merit and ability. The approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. The High Court, not being satisfied with the use of mere intemperate language, resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. [para 25-26] [233-G; 234-F] 2.2. The order of the High Court is based purely on the personal perceptions and predilections of the Judges on the bench. The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the “justice oriented approach”, the bedrock of which is fairness and impartiality. It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. The caustic remarks made by the High Court, against the government pleaders and the Court staff clearly exhibit a departure from the well established principles. [para 27-28] [235-B-D; 236-D] State of U.P. Vs. Mohammad Naim (1964)2 SCR 363 – relied on. 3. The judgment of the High Court is unsustainable either in law or in equity and, as such, is set aside. [para 29] [236-E] Case Law Reference: 2010 (8) SCR597 referred to para 18 1998 ( 1 ) Suppl. SCR 403 referred to para 18 (2003) 10 SCC 691 referred to para 18 2002 (5 ) Suppl. SCR350 referred to para 18 1987 ( 2 ) SCR 387 referred to para 19 (1964)2 SCR 363 relied on para 27 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2909-2913 of 2005. From the Judgment & Order dated 19.08.2003 of the High Court Judicature Andhra Pradesh at Hyderabad in CMP Nos. 21114-21118 of 2003. P.S. Narasimha and R. Sundaravardan, M. Srinivas R. Rao, K. Parameshwar, Sudhu Gupta, G.N. Reddy, V. Pattabhi Ram, C.K. Sucharita and V. Mohana for the appearing parties.

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2909-2913 OF 2005

Lanka Venkateswarlu (D) by LRs. .. Appellants
VERSUS
State of A.P. & Ors ..Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.
1. These appeals are directed against the order passed

by a Division Bench of the High Court of Judicature of

Andhra Pradesh at Hyderabad in CMP Nos. 21114,

21115, 21116, 21117 and 21118 of 2003 dated 19th

August, 2003. By the aforesaid order, the High Court

has allowed all the petitions/applications.
2. In the applications/petitions, respondent No.3,

herein, had sought the following directions:-


CMP
No. 21114/2003: Petition under

Order 22 Rule 4 of the CPC praying that in

the circumstances stated in the affidavit titled

therewith, the High Court will be pleased to

permit the petitioners to bring the above stated

persons as legal representatives of the

deceased sole respondent in Appeal

No. 8 of 1985 on the file of the High Court.
CMP No. 21115/2003: Petition U/s praying

that the High Court may be pleased to set

aside the dismissal Order dated 6.2.98 in AS

No.8 of 1985 and to restore the appeal to file.
CMP No. 21116/2003: Petition Under Order 9

Rule 9 read with section 151 CPC, praying that

the High Court may be pleased to set aside the

abatement caused due to the death of sole

respondent i.e. Lanka Venkateswarlu.
CMP No. 21117/2003:

Between

Sri D.E.V Apparao …Petitioner/impleaded

Petitioner in AS No.8 of 1985 on the file of

High Court

And:

1. The State of A.P. rep. by District

Collector, Visakhapatnam.

2. The Tahsildar, Visakhpatnam

…Respondent/Appellants

3. Lanka Venkateswarlu (died)

…Respondent
2
Petition under Order 1 Rule 10 CPC, prays this

Hon’ble Court may be pleased to permit the

petitioners society to be impleaded as

appellant No.3 along with the appellants No. 1

and 2 in AS. 8 of 1985 on the file of the

Hon’ble Court to prosecute the appeal.
CMP No. 21118/2003: Petition U/s 5 of

Limitation Act praying the High Court may be

pleased to condone the delay of 883 days in

filing the petition seeking to set aside the

dismissal order dated 6.2.1998.

These petitions coming on for hearing, upon

perusing the petition and the affidavit filed in

support thereof and upon hearing the

arguments of Govt. pleader for Appeal for

Petitioners in CMP Nos. 21114, 21115, 21116,

21118 of 2003 and of Mr. K. Sarva Bhouma

Rao, Advocate for petitioner in CMP

No. 21117 of 2003 and of Mr. M.S.R.

Subramanyam, Advocate for the respondents

in CMP Nos. 21114, 21115, 21116, 21118 of

2003 and G.P. for Appeal for the respondents

in CMP No. 21117 of 2003.”
3. We may now briefly notice the relevant facts as

stated in the pleadings of the parties and the impugned

order of the High Court. The predecessor of the

appellants, i.e., Shri Lanka Venkateswarlu, (hereinafter

referred to as `original plaintiff’), brought a suit O.S. No.

72 of 1979 before the subordinate judge Visakhapatnam
3
for the declaration of his title as the absolute owner of

the suit schedule property and for permanent injunction

restraining respondents Nos. 1 and 2 from interfering

with his peaceful possession. The suit schedule property,

to the extent of 2 acres was, according to the original

plaintiff, covered by survey No. 73/12 in Thokada village.

He had purchased the suit schedule property by a

registered sale deed dated 15th July, 1961 from one

Gonna Appanna son of Venkataswamy of China Gantyda

village. The original plaintiff was constrained to file the

aforesaid suit on coming to know that respondent Nos. 1

and 2 were claiming the suit schedule land to be “banjar

land” which vested in the Government. He had also

learned that the land was in imminent danger of being

illegally alienated by the respondent Nos. 1 and 2. They

were claiming that the land was required to issue Pattas

to weaker sections of society.

4. Respondent Nos. 1 and 2 were impleaded as the

defendants to the suit. Subsequently, the suit was
4
transferred to the Court of IVth Additional District Judge,

Visakhapatnam and renumbered as O.S. No. 83 of 1981.

5. The aforesaid averments of the original plaintiffs

were controverted by the respondent Nos. 1 and 2. It was

claimed that the plaint schedule property was not

covered by old survey No. 73/12 of the original village of

Thokada. The boundaries as well as survey number were

stated to be fictitious, forged and imaginary. Even the

ownership of the ancestors of the vendor of the original

plaintiff of the suit schedule land was denied. Further,

the alleged sale deed dated 15th July, 1961 between the

original plaintiff and the vendor was denied. It was also

stated that the original plaintiff was not in possession

and enjoyment of the plaint schedule property.

6. On the pleadings of the parties, the trial court

framed six issues. Issue No. 1 pertains to the title of the

original plaintiff to the schedule property. Issues No.2 &

3 were with regard to, whether the original plaintiff was
5
entitled to relief of declaration and injunction as prayed

for. Issue No.4 was whether the suit is not maintainable.

A perusal of the judgment of the trial court shows that

the suit was hotly contested on each and every issue.

Issues 1, 2, 3, 4 and 6 were decided in favour of the

original plaintiff and against the defendants, i.e.,

respondent Nos. 1 and 2. Issue No.5 with regard to

valuation of the suit was not pressed by the government

pleader. The suit was decreed by judgment dated

24th September, 1982.

7. The respondents challenged the aforesaid judgment

and decree by filing an appeal before the High Court of

Andhra Pradesh being A.S. No. 8 of 1985. The sole

respondent, i.e., original plaintiff died on 25th February,

1990. Therefore, the Advocate appearing for the

deceased original plaintiff being the `sole respondent’ in

the appeal filed a memo before the High Court giving

intimation about the death of his client. The memo was

filed after giving notice to the advocate for respondent
6
Nos. 1 and 2, who were appellants in the aforesaid

appeals. In spite of such intimation, respondent Nos. 1

and 2 failed to bring the legal representatives of the

deceased original plaintiff on record.

8. From the judgment of the High Court it is apparent

that the appeal came up for hearing on 24th April, 1997.

At that stage, the counsel for the appellants again

brought to the notice of the Court that his client has

passed away on 25th February, 1990. The High Court

directed the government pleader to take steps to bring on

the record the legal representatives of the original

plaintiff and posted the matter for hearing on 16th June,

1997. It appears that no actions were taken by the

respondents to comply with the order passed by the High

Court on 24th April, 1997. Therefore, on 6th February,

1998, Justice V. Rajagopala Reddy, J. passed the

following order:-

“Appeal under Section 96 CPC against the

order of the Court of the IV Addl. District

Judge, Visakhapatnam dt.24.09.1982 in O.S.

No. 83/81.
7

This appeal coming on for orders under

Rule 64 of the Appellate Side Rules of the High

Court on the failure of the Appellant herein.

1. To take steps to bring on record the LRs. of

the deceased sole respondent.

In the presence of G./P. for Excise for the

Appellant and of Mr. M.S.R. Subramanyam,

Advocate for the respondent No.1.

It is ordered as follows:

1. That the Appellant do within one week from

the date of this order comply with the

requisitions of the Office referred to above

and;

2. That in default of compliance with the said

requisitions within the time prescribed in

clause 1 supra, the Appeal shall stand

dismissed as against the sole respondent

herein.”
9. The aforesaid order was admittedly not complied

with. Consequently, the appeal stood abated in terms of

the order dated 6th February, 1998. It appears that

thereafter CMPSR No. 49656 of 2000 was moved by

respondent Nos. 1 and 2 seeking condonation of 883

days delay in filing the petition to set aside the dismissal

order dated 6th February, 1998. The application was
8
accompanied by an affidavit where it is candidly admitted

by respondent No.2 that the order dated 6th February,

1998 was not complied with. It was further admitted

that as the order dated 6th February, 1998 was not

complied with, the default order came into force and the

appeal stood dismissed.

10. In this affidavit, the explanation given is that the

predecessors of the officer, who affirmed the affidavit

dated 11th July, 2000 came to know about the dismissal

of the appeal during the course of investigation in

original O.S. No. 6 of 2000 which had been filed by the

widow and the children of the deceased original plaintiff,

i.e., sole respondent in the appeal. It is also admitted

that thereafter, an application was filed for setting aside

the order of abatement dated 6th February, 1998, but,

without any application seeking condonation of delay of

883 days in filing the petition. To cover the foresaid

lapse, CMP No. 21118 of 2003 was filed seeking

condonation of delay of 883 days in filing the petition.
9
11. Thereafter CMPSR No. 58644 of 2000 was filed on

17th August, 2000 with a prayer to condone the delay of

3703 days to bring the legal representatives on record.

CMPSR No. 58646 of 2000 was filed to bring the legal

representatives of the deceased original plaintiff on

record and CMPSR No. 58645 of 2000 to set aside the

order of dismissal in AS No. 8 of 1985 dated 6th February,

1998 was filed. These applications were subsequently

numbered as noted in the heading of the impugned

judgment.

12. It appears from the impugned order of the High

Court and CMPSR No. 58644 of 2000 was numbered as

CMP no. 17186 of 2000 on 17th August, 2000 and listed

before the Court on 27th September, 2000. The High

Court granted two weeks time for filing the counter. The

aforesaid CMP was posted for hearing before the bench

on 16th October, 2000 (Venkatanarayan,J.). At that time,

counsel for the deceased original plaintiff submitted that
1
his client had died in 1990 and he had no instructions.

Therefore, the Court directed to issue notice to the

parties on the petition. Even at that stage the

government pleader did not bring to the notice of the

Court that the applications filed by respondent Nos. 1

and 2 to set aside the order of dismissal and to bring the

legal representatives on record were pending

consideration.

13. Thereafter it appears the matter was adjourned on a

number of occasions from 27th June, 2001 to 9th April,

2002. Surprisingly, on 3rd June, 2002 the government

pleader again took time from the Court to verify whether

any separate application was filed for restoration of the

appeal and whether any such application was pending or

not. Thereafter the matter was not pursued by the

government pleader.

14. In the meantime, the alleged beneficiaries to whom

Pattas had been granted by the Government Poramboke
1
in the year 1979 filed CMP No. 21705 of 2000, seeking

permission of the Court to come on record as the third

appellant in the appeal. In the impugned order, it is also

pointed out that the pendency of the applications had

come to the notice of the Court intermittently. It appears

that the application to condone the delay in filing the

petition for setting aside the order of dismissal was filed,

when the lapse was pointed by the Court.

15. Thereafter, it seems that without the adjudication of

any of the applications on merits, the appeal was listed

for hearing before the Bench, which culminated into

passing the judgment and order dated 19th August, 2003,

subject matter of the present appeal. By the aforesaid

judgment, the High Court has allowed all the applications

restored the appeal posted it for hearing on 25th August,

2003.

16. This Court while issuing notice in the SLP

on 15th December, 2003 directed that “in the meantime,
1
proceedings in the appeal pending in the High Court

shall remain stayed”. Therefore, it is evident that the

situation today is as it was when the order was passed on

6th February, 1998, i.e., appeal filed by the respondent

Nos. 1 and 2 stood abated and hence dismissed.

17. We have heard the learned counsel for parties.

Mr. P.S. Narasimha, senior advocate, appearing for the

appellant submitted that the impugned order of the High

Court cannot be justified on any legal ground. He

submits that the High Court having itself recorded the

utter negligence of the respondents in pursuing the

appeal at every stage, without any justification, condoned

the delay. The learned senior counsel pointed out that

there was no explanation, much less any plausible

explanation to justify the delay of 3703 days in filing the

application for bringing on record the LRs. of the sole

respondent or for the delay in filing the application for

setting aside the order dated 6th February, 1998. It was

further submitted that there was no justification to
1
permit the respondent No.3 to be impleaded as a party in

the appeal. Learned counsel relied on the judgment of

this Court in the case of Balwant Singh (dead) Vs.
Jagdish
Singh1
in support of the submission that the
law of limitation has to be enforced in its proper

prospective. Even though the Courts have power to

condone the delay, it can not be condoned without any

justification. Such an approach would result in rendering

the provisions contained in the Limitation Act redundant

and inoperative.

18. On the other hand, learned counsel for the

respondents relied on the judgments of this Court in the

case of N. Balakrishnan Vs. M.
Krishnamurthy2
,
Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram
Kini & Ors.3 and Sardar Amarjit Singh Kalra (dead) by
LRs Vs. Pramod
Gupta (dead) by LRs.4
and submitted

1 (2010)8 SCC 685

2 (1998) 7 SCC 123

3 (2003) 10 SCC 691

4 (2003) 3 SCC 272

1
that the High Court in condoning the delay has merely

advanced the cause of substantial justice.

19. We have considered the submissions made by the

learned counsel. At the outset, it needs to be stated that

generally speaking, the courts in this country, including

this Court, adopt a liberal approach in considering the

application for condonation of delay on the ground of

sufficient cause under Section 5 of the Limitation Act.

This principle is well settled and has been set out

succinctly in the case of Collector, Land Acquisition,
Anantnag & Ors. Vs. Katiji & Ors.5

20. In the case of M. Balakrishnan (supra), this Court

again reiterated the principle that rules of limitation are

not meant to destroy the rights of parties. They are

meant to see that the parties do not resort to dilatory

tactics, but seek their remedy promptly.

5 (1987) 2 SCC 107

1
21. In the case of Sardar Amarjit Singh Kalra (supra),

this Court again emphasized that provisions contained in

the Order 22 CPC were devised to ensure continuation

and culmination in an effective adjudication and not to

retard further progress of the proceedings. The provisions

contained in the Order 22 are not to be construed as a

rigid matter of principle, but must ever be viewed as a

flexible tool of convenience in the administration of

justice. It was further observed that laws of procedure

are meant to regulate effectively, assist and aid the object

of doing a substantial and real justice and not to

foreclose even adjudication on merits of substantial

rights of citizen under personal, property and other laws.

In the case of Mithailal Dalsangar Singh and Ors. Vs.
Annabai Devram Kini & Ors, (Supra), this Court again
reiterated that in as much as abatement results in denial

of hearing on the merits of the case, the provision of an

abatement has to be construed strictly. On the other

hand, the prayer of setting aside abatement and the

1
dismissal consequent upon abatement had to be

considered liberally. It was further observed as follows:-

“The Courts have to adopt a justice oriented

approach dictated by the uppermost

consideration that ordinarily a litigant ought

not to be denied an opportunity of having a lis

determined on merits unless he has, by gross

negligence, deliberate inaction or something

akin to misconduct, disentitled himself from

seeking the indulgence of the court.”
22. The concepts of liberal approach and

reasonableness in exercise of the discretion by the Courts

in condoning delay, have been again stated by this Court

in the case of Balwant Singh (supra), as follows:-

“25. We may state that even if the term

“sufficient cause” has to receive liberal

construction, it must squarely fall within the

concept of reasonable time and proper conduct

of the party concerned. The purpose of

introducing liberal construction normally is to

introduce the concept of “reasonableness” as it

is understood in its general connotation.”

“26. The law of limitation is a substantive law

and has definite consequences on the right

and obligation of party to arise. These

principles should be adhered to and applied

appropriately depending on the facts and

circumstances of a given case. Once a

valuable right has accrued in favour of one

party as a result of the failure of the other

party to explain the delay by showing sufficient
1
cause and its own conduct, it will be

unreasonable to take away that right on the

mere asking of the applicant, particularly

when the delay is directly a result of

negligence, default or inaction of that party.

Justice must be done to both parties equally.

Then alone the ends of justice can be achieved.

If a party has been thoroughly negligent in

implementing its rights and remedies, it will be

equally unfair to deprive the other party of a

valuable right that has accrued to it in law as

a result of his acting vigilantly.”
23. Let us now examine as to whether the High Court

was justified in condoning the delay in the peculiar facts

of the presence case. The High Court in its judgment

records the following conclusions:-

“(1) The Government Pleader having filed the

appeal on 18.2.1983 has taken three long

years to get the appeal numbered.

(2) The sole respondent died in 1990. The

learned counsel for the respondent submits

that he served a letter on the learned

Government Pleader bringing to his notice

about the death of his client in 1990 itself.

Since the letter is not traced we are not giving

much importance to that fact. But at the same

time this fact was brought to the notice of the

Government Pleader on 24.2.1997 when the

appeal was listed for hearing.

(3) Even though the Court gave sufficient time

the Government Pleader has not taken any

steps to bring LRs. on record.
1
(4) After one year the Court passed a

Conditional Order on 6.2.1998 and the appeal

was dismissed for not bringing the LRs. on

record.

(5) After two more years the concerned

officials of the Government and the

Government Pleader in office at the relevant

point of time, filed some applications, which

are not in order.

(6) Even then they have not bestowed any

attention either to comply with the defects in

filing the application or in getting the orders

are passed on these applications. But at the

same time they went on taking time without

knowing for what purpose they were taking

time.

In the result an appeal which would have been

disposed of in 1997 remained pending all these

years mainly due to the negligence on the part

of the Government Pleader in office.

Thereafter at the two stages, the High Court records

that:-

“In the normal course we would have thrown

out these applications without having second

thought in the matter…………..”

“We have already observed that in the normal

course we would have dismissed the

applications for severe latches on the part of

the appellants and their counsel.”

1
24. Having recorded the aforesaid conclusions, the High

Court proceeded to condone the delay. In our opinion,

such a course was not open to the High Court, given the

pathetic explanation offered by the respondents in the

application seeking condonation of delay.

25. This is especially so in view of the remarks made by

the High Court about the delay being caused by the

inefficiency and ineptitude of the government pleaders.

The displeasure of the Court is patently apparent from

the impugned order itself. In the opening paragraph of

the impugned order the High Court has, rather

sarcastically, dubbed the government pleaders as without

merit and ability. Such an insinuation is clearly

discernable from the observation that “This is a classic

case, how the learned government pleaders appointed on

the basis of merit and ability (emphasis supplied) are

discharging their function protecting the interest of their

clients”. Having said so, the High Court, graphically

narrated the clear dereliction of duty by the concerned
2
government pleaders in not pursuing the appeal before

the High Court diligently. The High Court has set out the

different stages at which the government pleaders had

exhibited almost culpable negligence in performance of

their duties. The High Court found the justification given

by the government pleaders to be unacceptable. Twice in

the impugned order, it was recorded that in the normal

course, the applications would have been thrown out

without having a second thought in the matter. Having

recorded such conclusions, inexplicably, the High Court

proceeds to condone the unconscionable delay.

26. We are at a loss to fathom any logic or rationale,

which could have impelled the High Court to condone the

delay after holding the same to be unjustifiable. The

concepts such as “liberal approach”, “justice oriented

approach”, “substantial justice” can not be employed to

jettison the substantial law of limitation. Especially, in

cases where the Court concludes that there is no

justification for the delay. In our opinion, the approach
2
adopted by the High Court tends to show the absence of

judicial balance and restraint, which a Judge is required

to maintain whilst adjudicating any lis between the

parties. We are rather pained to notice that in this case,

not being satisfied with the use of mere intemperate

language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant

language in a judgment has been repeatedly disapproved

by this Court in a number of cases. Whilst considering

applications for condonation of delay under Section 5 of

the Limitation Act, the Courts do not enjoy unlimited and

unbridled discretionary powers. All discretionary powers,

especially judicial powers, have to be exercised within

reasonable bounds, known to the law. The discretion

has to be exercised in a systematic manner informed by

reason. Whims or fancies; prejudices or predilections

can not and should not form the basis of exercising

discretionary powers.

2
27. The order of the High Court, in our opinion, is

based purely on the personal perceptions and

predilections of the Judges on the bench. The latent

anger and hostility ingrained in the expressions employed

in the judgment have denuded the judgment of

impartiality. In its desire to castigate the government

pleaders and the Court staff, the High Court has

sacrificed the “justice oriented approach”, the bedrock of

which is fairness and impartiality. Judges at all levels in

this country subscribe to an oath when entering upon

office of Judgeship, to do justice without fear or favour, ill

will or malice. This commitment in form of a solemn oath

is to ensure that Judges base their opinions on

objectivity and impartiality. The first casualty of

prejudice is objectivity and impartiality. It is also well

known that anger deprives a human being of his ability

to reason. Judges being human are not immune to such

disability. It is of utmost importance that in expressing

their opinions, Judges and Magistrates be guided only by

the considerations of doing justice. We may notice here
2
the observations made by a Constitution Bench of this

Court in the case of State of U.P. Vs. Mohammad
Naim
6
, which are of some relevance in the present
context. In Paragraph 11 of the judgment, it was

observed as follows:-

“If there is one principle of cardinal importance

in the administration of justice, it is this: the

proper freedom and independence of Judges

and Magistrates must be maintained and they

must be allowed to perform their functions

freely and fearlessly and without undue

interference by any body, even by this Court.

At the same time it is equally necessary that in

expressing their opinions Judges and

Magistrates must be guided by considerations

of justice, fair-play and restraint. It is not

infrequent that sweeping generalisations defeat

the very purpose for which they are made. It

has been judicially recognised that in the

matter of making disparaging remarks against

persons or authorities whose conduct comes

into consideration before courts of law in cases

to be decided by them, it is relevant to

consider (a) whether the party whose conduct

is in question is before the court or has an

opportunity of explaining or defending himself;

(b) whether there is evidence on record bearing

on that conduct, justifying the remarks; and

(c) whether it is necessary for the decision of

the case, as an integral part thereof, to

animadvert on that conduct. It has also been

recognised that judicial pronouncements must

be judicial in nature, and should not normally

depart from sobriety, moderation and reserve.”
6 (1964) 2 SCR 363

2
28. We are of the considered opinion that the caustic

remarks made by the High Court, against the government

pleaders and the Court staff clearly exhibits a departure

from the principles quoted above.

29. We are of the considered opinion that the judgment

of the High Court is unsustainable either in law or in

equity. Consequently, the appeals are allowed. The

impugned judgment of the High Court is set aside with

no order as to costs.

……………………………..J.

[B.Sudershan Reddy]

……………………………..J.

[Surinder Singh Nijjar]
New Delhi;

February 24, 2011.

2

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