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CA/15/2011 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 15 of 2011
In
MISC.CIVIL
APPLICATION (STAMP NUMBER) No. 3268 of 2010
In
SPECIAL
CIVIL APPLICATION No. 5699 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
GOVINDBHAI
BHAVSING JHALA & 7 - Petitioner(s)
Versus
PRIYANKA
FIBERS & FILAMENTS PVT LTD & ANR & 11 - Respondent(s)
=========================================================
Appearance
:
MR
GM JOSHI for
Petitioner(s) : 1 - 8.
MR DAXESH T DAVE for Respondent(s) : 1,
MR
RAJESH B DESAI for Respondent(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 2 - 10.
DS AFF.NOT FILED (R) for Respondent(s) :
11,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 28/04/2011
ORAL
JUDGMENT
1. Present
application is taken out with a request to condone delay of 673 days
caused in preferring Misc. Civil Application seeking review of order
dated 22.01.2009.
2. The
said order dated 22.01.2009 has been passed in Special Civil
application No.5699 of 1999. By the said order, the said petition was
partly allowed. The said order was essentially passed in view of the
declaration and stipulation made by Mr.Joshi, learned advocate for
the petitioners. It is, now, claimed (in the accompanying application
seeking review) by the applicant that :-
“1. The
applicants are the original respondents of SCA No.5699 of 1999 that
was decided by the Hon’ble Court by judgement and order date 22nd
January 2009. By the said judgement and order, the Hon’ble Court had
party allowed the petition and directed the petitioner company to
make the payment of wages to the Resp.No.1 i.e. Govindbhai Bhavsing
Jala for the period between 15th December 1995 and 3rd
August 1996 and also to pay retiral dues to the said respondents. The
relief against the other workmen was granted mainly on the ground
that they have not entered their appearance in the proceedings. A
copy of the judgement and order passed by the Hon’ble Court is
produced herewith and marked as Annexure-A to this application.
2. The
applicants state that they were of the bonafide belief that the
dispute was a representative dispute sponsored by the union and was a
collective dispute, therefore, did not file their appearance. In view
of the fact that the original petitioner company was closed down,
they had lost their hope and were not pursuing th mater as it would
also involved financial implications They were bonafide of the
impression that the matter was over for all practical purposes and
were engaged in other employments. However, the union pointed out
that they there was no contest, they were not paid their legitimate
dues and therefore the union addressed a letter on 3rd May
2009 to the original petitioner company calling upon them to make
available the details of any amount paid to the applicants, a copy of
the letter is produced herewith as Annexure-B to this application. No
response is received by the union till date.
3. The
applicants state that the applicants were similarly situated as those
employees who had settled with the respondent company during the
pendency of the proceedings and they are also entitled to and willing
to accept the same benefits as were paid to some of the respondents
by the original petitioner company, a copy of one such settlement is
produced herewith and marked as Annexure-C.”
3. The
said averments and statements are made by the applicants in the
accompanying MCA whereby the applicants seek review of the order
dated 22.01.2009. On the grounds and for the reasons stated in the
application. The applicants also seek condonation of delay of 673
days caused in filing the said application. In addition to the
aforesaid statements and averments made in the application seeking
review of the order, in present application (seeking condonation of
delay), the applicants have stated that:-
“2. The
applicants state that there is a considerable delay in preferring the
application. The reasons are that the applicants were working as
lowest paid workmen in the original petitioner company which had
closed down its affairs and the workmen were scattered at various
places having no single place of a meeting except visiting the union
office from time to time. The dispute was old and the matter was
pending before the Hon’ble High Court for 10 years. Therefore, the
applicants who were engaged in small time jobs for meeting their two
ends meet could not pursue the matter with the union in time.
However, in the month of April 2009, they had approached the union
when they were informed about the disposal of the petition. The union
accordingly addressed a letter to the respondents, but there was no
response to the same. The applicants also approached the original
petitioner company ‘s owner, but they did not get any response,
therefore they had no option but to approach their advocates through
the union for seeking the filing of present review application. The
process has taken considerably long time but the same is bonafide and
in the interest of justice the delay may be condoned by this Hon’ble
Court taking into consideration the peculiar circumstances and facts
of the case.”
4. Accordingly,
the applicants have tried to explain delay. The request-application
is opposed by the respondent-Company i.e. the employer. It is claimed
that the each days has not been properly explained.
5. In
this context, a reference may be made to the judgment of the Hon’ble
Apex Court in the case between N. Balakrishnan and M.
Krishnamurthy, reported in 1998 (7) SCC 123,
wherein the Hon’ble Apex Court has observed in para nos.9 and 11 to
12 as under:-
“9. It
is axiomatic that condonation of delay is a matter of discretion of
the Court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a certain
limit. Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of the shortest
range may be uncondonable due to want of acceptable explanation
whereas in certain other cases delay of very long range can be
condoned as the explanation thereof is satisfactory. Once the Court
accepts the explanation as sufficient it is the result of positive
exercise of discretion and normally the superior Court should not
disturb such finding, much less in revisional jurisdiction, unless
the exercise of discretion was on wholly untenable grounds or
arbitrary or perverse. But it is a different matter when the first
Court refused to condone the delay. In such cases, the superior
court would be free to consider the cause shown for the delay afresh
and it is open to such superior Court to come to its own finding even
untrammeled by the conclusion of the lower Court.
11. Rules
of limitation are not meant to destroy the right of parties. They
are meant to see that parties do not resort to dilatory tactics, but
seek their remedy promptly. The object of providing a legal remedy
is to repair the damage caused by reason of legal injury. Low o
limitation fixes a life span for such legal remedy for the redress of
the legal injury so suffered. Time is precious and the wasted time
would never revisit. During efflux of time newer causes would sprout
up necessitating newer persons to seek legal remedy by approaching
the courts. So a life span must be fixed for each remedy. Unending
period for launching the remedy may lead to unending uncertainty and
consequential anarchy. Low of limitation is thus founded on public
policy. It is enshrined in the maxim Interest reipublicae up sit
finis litium (it is for the general welfare that a period be put to
litigation). Rules of limitation are not meant to destroy the right
of the parties. They are meant to see that parties do not resort to
dilatory tactics but seek their remedy promptly. The idea is that
every legal remedy must be kept alive for a legislatively fixed
period of time.
12. A
court knows that refusal to condone delay would result foreclosing
a suitor from putting forth his cause. There is no presumption that
delay in approaching the court is always deliberate. This Court
has held that the words “sufficient cause” under Section 5
of the Limitation Act should receive a liberal construction so as to
advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal
Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The
Administrator, Howrah Municipality [AIR 1972 SC 749].”
6. Earlier,
in case of Collector, Land Acquisition, Anantnag & Anr. V/s.
Mst. Katiji & Ors. reported in AIR 1987 SC 1353 the
Hon’ble Supreme Court has observed as under :-
“To
condone, or not to condone, is not the only question. Whether or not
to apply the same standard in applying the “sufficient cause”
test to all the litigants regardless of their personality in the
said context is another.
3. The
legislature has conferred the power to condone delay by enacting
Section 51 of the Indian Limitation Act of 1963 in order to enable
the Courts to do substantial justice to parties by disposing of
matters on ‘merits’. The expression “sufficient cause”
employed by the legislature is adequately elastic to enable the
courts to apply the law in a meaningful manner which subserves the
ends of justice–that being the life-purpose for the existence of
the institution of Courts. It is common knowledge that this Court
has been making a justifiably liberal approach in matters instituted
in this Court. But the message does not appear to have
percolated down to all the other Courts in the hierarchy. And such
a liberal approach is adopted on principle as it is realized that:-
“Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908. may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the
application within such period.” 389 1. Ordinarily a litigant
does not stand to benefit by lodging an appeal late. 2. Refusing
to condone delay can result in a meritorious matter being thrown
out at the very threshold and cause of justice being defeated.
As against this when delay is condoned the highest that can happen is
that a cause would be decided on merits after hearing the
parties. 3. “Every day’s delay must be explained” does
not mean that a pedantic approach should be made. Why not every
hour’s delay, every second’s delay? The doctrine must be
applied in a rational common sense pragmatic manner.
5. There
is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of malafides. A
litigant does not stand to benefit by resorting to delay. In fact he
runs a serious risk.
6.
It must be grasped that judiciary is respected not on account of
its power to legalize injustice on technical grounds but because it
is capable of removing injustice and is expected to do so. Making
a justice-oriented approach from this perspective, there was
sufficient cause for condoning the delay in the institution of the
appeal. The fact that it was the ‘State’ which was seeking
condonation and not a private party was altogether irrelevant. The
doctrine of equality before law demands that all litigants,
including the State as a litigant, are accorded the same treatment
and the law is administered in an even handed manner. There is no
warrant for according a stepmotherly treatment when the ‘State’ is
the applicant praying for condonation of delay. In fact experience
shows that on account of an impersonal machinery (no one in charge
of the matter is directly hit or hurt by the judgment sought to be
subjected to appeal) and the in-390 herited bureaucratic methodology
imbued with the note-making, file pushing, and passing-on-the-buck
ethos, delay on its part is less difficult to understand though more
difficult to approve. In any event, the State which represents
the collective cause of the community, does not deserve a
litigant-non-grata status. The Courts therefore have to be informed
with the spirit and philosophy of the provision in the course of
the interpretation of the expression “sufficient cause”.
So also the same approach has to be evidenced in its application to
matters at hand with the end in view to do even handed justice on
mertis in preference to the approach which scuttles a decision on
merits. Turning to the facts of the matter giving rise to the present
appeal, we are satisfied that sufficient cause exists for the delay.
The order of the High Court dismissing the appeal before it as time
barred, is therefore. set aside. Delay is condoned. And the matter
is remitted to the High Court. The High Court will now dispose of
the appeal on merits after affording reasonable opportunity of
hearing to both the sides. Appeal is allowed accordingly. No costs.
Appeal allowed.”
7. A
reference may also be made to the observation of this Court in the
case of Special Land Acquisition Officer, Godhra V/s. Lilavatiben
Kodar Ranchhod & Others reported in 2002(3) GLH 226
wherein at para 7 it is observed that :-
“7. Apart
from that the ultimate anxiety of the Court while dealing with an
application of condonation of delay has been, to see that ordinarily
no meritorious matter is thrown over board on the technical grounds
of delay. The purpose and design incorporating the provisions
of Section 5 of the Limitation Act is to see that ordinarily a
substantial justice is required to be given and ordinarily,
unless there are circumstances running counter to the spirit of
the provision of section 5, the meritorious matters are required
to be dealt with and adjudicated upon on merits. It is rightly said
that no party or person would stand benefitted by filing appeal or
application late without any reason ordinarily when he has made up
his mind to challenge the impugned order, award, judgment or
decision, as the case may be. There cannot be such presumption also.
This proposition of law is also very well settled since long.
Therefore, while dealing with an application for condonation of
delay, one cannot start with presumption that party did not intend to
question it. On the contrary, the presumption may be other way
round. Whereas in the present case it is manifested in the
application that the certified copy of the impugned common award was
applied for on the same day when the Reference Court finalized the
matters. Therefore, the contention that delay cannot be condoned
in this group of matters is unsustainable and
unacceptable.”
8. Mr.Dave,
learned advocate for the respondent-Company, has submitted that the
amount was offered to the concerned workman. He has also tried to
make other submissions as regards the allegations of the applicants
in the petition. However, the said submissions are on merits of the
matter/dispute and would be relevant at the time when the application
for review is to be considered. The respondents would get an
opportunity to oppose, on merits, the application seeking review.
However, the said objections are not relevant so far as the request
for condonation of delay is concerned. It is pertinent that any
allegations of malafides are not made.
9. Having
regard to the explanation given by the applicants and in view of the
observations in the aforesaid decision, in my view, the applicants
have made out sufficient cause to condone delay and the cause for
delay has been satisfactorily explained.
10. Under
the circumstances, the application deserves to be allowed. Therefore,
the following order is passed.
10.1 The
relief prayed for in Para-3(A) is granted, delay of 673 days caused
in preferring application seeking review of the order dated
22.01.2009 is condoned.
10.2 With
the clarification that it would be open to the respondents to raise
objections on merits at the time when the application for review is
considered.
10.3 With
the aforesaid clarifications, observations and directions, present
Civil Application stands disposed of. Rule is made absolute to
aforesaid extent. In the facts and circumstances of the case, there
shall, however, be no order as to cost.
(K.M.
Thaker, J.)
rakesh/
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