JUDGMENT
Sunil Kumar Guin, J.
1. This is an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal.
2. Admittedly there has been delay of 253 days in preferring the instant appeal and the petitioner-appellant has prayed for its condonation on the ground that delay was caused due to the rules of the executive business of the Government of India and also due to unavoidable circumstances. The petitioners have also contended that there was no laches or negligence on the part of the petitioners in the matter of preferring the instant appeal.
3. Under Section 5 of the Limitation Act the Court may admit an appeal even after expiry of the prescribed period of limitation if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. It is a matter of discretion with the Court whether it will enlarge the period of limitation or not. Of course, this discretion is a judicial discretion and not arb. The Court must exercise its discretion with reference to the facts and circumstances of each case. In such exercise of discretion the Court must see whether or not the appellant has acted with reasonable diligence in prosecuting the appeal. While granting such indulgence in favour of the appellant, the Court must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence whatsoever. No hard and fast rules can be laid down as to what constitutes sufficient cause. It must be determined by a reference to the circumstances of each case. In this connection we may refer with approval to a decision of a learned Single Judge of this Court in the case of Beharilal Shaw v. Surendra Singh 92 CWN 595. In that case there was delay to the extent of 67 days in filing an application under Sections 17(1), 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. Though the learned trial Judge condoned delay in making such application, the learned Single Judge of this Court, however, held that the learned trial Judge was not justified in condoning the delay. He has further held that a party who wants the discretion vested in Court of law under Section 5 of the Limitation Act to be exercised in his favour must prove the case for exercise of such a discretion and that a party asking for such exercise of discretion in his favour must not keep facts up his sleeves but must make full and complete disclosure of related facts. With respect we agree with his view. The petitioner-appellant must disclose all the relevant facts for exercise of such discretion in his favour.
4. With regard to Section 5 of the Limitation Act, the statute makes no distinction between the Government or a private individual. Requirement of diligence in the case of the Government cannot be different from that in the case of an individual.
5. In the application under Section 5 of the Limitation Act delay of 253 days in the matter of preferring the instant appeal was not satisfactorily and adequately explained. That is why a liberty was given to the petitioner to file a supplementary affidavit and the same was accordingly filed by the petitioner. A series of dates as appearing in the supplementary affidavit makes an interesting reading and discloses a dismal picture in the manner of functioning of the executive of our Government and also discloses utter negligence on the part of the counsel engaged by the petitioner. The series of dates as disclosed in the application is given below :-
26.2.91 — The judgment was delivered by the trial Court.
27.2.91 — Petitioner’s advocate applied for copy of the judgment.
21.3.91 — The date fixed for notifying the requisites.
25.3.91 — Requisites were deposited.
10.5.91 — The copy of judgment was made ready for delivery.
16.5.91 — The copy was collected.
21.5.91 — The copy was sent to D.C. Income Tax Judicial H. Qrs. Calcutta.
30.6.91 — D.C. of Income Tax sent the copy of judgment to the concerned I.T.O.
2.7.91 — I.T.O. sent back with his opinion for preferring appeal.
10.7.91 — D.C. Income Tax judicial H. Qrs. sent a letter to the Sr. Central Government Advocate/Joint Secretary, Ministry of Law and Justice, Branch Secretariat Calcutta for briefing the counsel for preferring appeal.
27.9.91 — Ministry of Law and Justice briefed/engaged Mr. A. C. Maitra as Senior Advocate and Mr. R. C. Prasad as his junior.
2nd week of October 1991 – Mr. A. C. Maitra handed over the brief to his junior.
11.10.91 — Memo of appeal was duly drafted but could not be sent to the Ministry of Law and Justice or D.C. Income Tax Judicial H. Qrs. Calcutta for approval before long vacation owing to the reason that application for condonation of delay was yet to be drawn.
20.11.91 — Application for condonation of delay was drafted.
27.11.91 — The draft was sent to the concerned authority for approval,
28.11.91 — Approval was received.
14.11.91 — Cost bill for preferring appeal and stay application was sent by the learned advocate.
13.2.92 — Bill was processed and passed.
14.2.92 — Memo of appeal was filed.
6. From the above it is clear that though the copy of judgment was made ready for delivery on 10.5.91, but it was collected only on 16.5.91. There was delay of five days in the matter of collecting such copy and practically there is no explanation in the application as to why this delay occurred. Though the copy of judgment was sent to D.C. Income Tax Judicial H. Qrs. Calcutta on 21.5.91 but he took more than a month just to send the said copy to the concerned I.T.O. for obtaining his opinion in the matter of preferring the appeal. This delay from 21.5.91 to 30.6.91 has not been explained in any manner by the petitioner in his petition/affidavit. Though D.C. Income Tax Judicial H. Qrs. Calcutta sent a letter to the Central Government Advocate/Joint Secretary Ministry of Law and Justice, Branch Secretariat Calcutta for briefing the counsel for preferring appeal but curiously enough the said authority took more than 2 months just to brief/engage a counsel for preferring appeal. Nothing has been disclosed in the petition to explain such inordinate delay in the matter of engaging or briefing a counsel. Though the Sr. Counsel appears to have received the brief on 27.9.91, he just leisurely passed it on to his junior in the 2nd week of October 1991. Though it has been claimed that memo was duly drafted on or before 11.10.91 but it could not be sent to the authority concerned for approval before long vacation owing to the reason that the application for condonation of delay was not drawn up. It is very difficult to understand why the application for condonation of delay was not drafted at the time of drafting of the memo of appeal particularly when the appeal on the face of it on the date of drafting was barred by limitation. So this allegation as to drafting of the petition for condonation of delay on a subsequent date i.e. on 20.11.91 does not impress us at all. The learned Counsel claims to have submitted cost bill for preferring appeal and stay application on 14.11.91 i.e. prior to the approval of the draft. It is very difficult to understand as to why cost bill was submitted so late. He could have submitted the cost bill long before immediately after drafting of memo of appeal. Though the cost bill was submitted on 14.11.91 but the department concerned took about three months to process and pass the bill. It is really a deplorable state of affair.
7. It has been argued by the learned counsel for the respondent that the aforesaid delay was due to the rules of executive business of the Government of India. But no copy of such rules have been produced before us. Mere averment that the aforesaid delay occurred due to rules of business of the Government concerned will not do. In this connection learned advocate appearing for the opposite party-respondent has referred to a decision of a Three-Judge Bench of the Supreme Court in the case of Union of India v. Tata Yodogawa Limited reported in 1988(38) Excise Law Times 739 (SC). In that case there was a delay of 51 days in the matter of preferring a special leave petition before the Supreme Court and in the application for condonation of delay the petitioners stated that delay was due to “Interdepartmental correspondence and processing of matter to enable he department to file the instant petition.” It was contended before the Supreme Court that such delay was always beyond the control of especially in government matters as the file had to be routed through several Sections of the Department. In that connection the Supreme Court observed as follows :-
“We are aware of the fact that a Government being impersonal takes longer time than the private Bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause of such delay. As stated from the facts narrated hereinbefore there is no sufficient cause to explain the delay.”
8. With the above observation the Supreme Court dismissed the application for condonation of delay. Thus from the above decision it is clear that though a department of the Government being impersonal may take longer time than the private individuals in the matter of preferring the appeal but even then there must be some way or attempt to explain the cause of such delay. The mere fact that the appeal is to be preferred by the department of the Government or the mere averment that delay was caused due to the rules of executive business of the Government will not at all be sufficient. There must be some explanation for the entire period of delay in the matter of preferring the appeal. As has been pointed out earlier there has been no cogent and possible explanation for the delay from 10.5.91 to 16.5.91, from 21.5.91 to 30.6.91 and from 10.7.91 to 27.9.91. Though the petitioner attempted to explain the delay from 11.10.91 to 13.2.92 but such explanation according to us, is not at all satisfactory. So having regard to the facts and circumstances of the case we hold that there was no sufficient cause for not preferring the instant appeal within time and that as such we are not at all inclined to condone delay in the matter of preferring the instant appeal.
9. Application for condonation of delay under Section 5 of the Limitation Act, is, therefore, dismissed. We make no order as to cost.
A.M. Bhattacharjee, Actg. C.J.
10. I agree that in the facts and circumstances of the case the application for condonation of delay must be dismissed as the delay has not at all been satisfactorily explained.
