IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 RSA.No. 607 of 2009() ------------ AGAINST THE ORDER DATED 16/08/2007 IN IA 1064/2007 IN AS.100/2007 of I ADDL.DISTRICT COURT, KOZHIKODE OS.239/2004 of PRINCIPAL MUNSIFF COURT-I, KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------ 1. UNION OF INDIA, REP. BY SECRETARY MINISTRY OF DEFENCE, NEW DELHI-110 011. 2. OFFICER-IN-CHARGE, E.M.E.RECORDS, SECUNDERABAD. 3. CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLAHABAD-U.P. 4. ZILA SAINIK WELFARE OFFICE, KOZHIKODE, PANCHAMA SCHOOL ROAD, KALATHINKUNNU AMSOM, DESOM, CALICUT-1. BY ADV. SRI.P.J.PHILIP (Sr.), C.G.C SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL OF INDIA RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- SMT.PADMINI AMMA, AGED 77 YEARS, WIFE OF LATE K.MADHAVAN NAIR, PUNNOLATHIL HOUSE, P.O.KADALUNDI, KOZHIKODE TALUK, KOZHIKODE-673 302. ADV. SRI.AVM.SALAHUDIN ADV. SRI.A.VISWANATHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.607 of 2009 -------------------------------------- Dated this the 29th day of October, 2009. JUDGMENT Heard. Admitted. Respondent appears through counsel. The following substantial question of law is framed for a decision: Whether, first appellate court was justified in dismissing the application to condone delay when sufficient and cogent grounds were stated in the affidavit filed along with the memorandum of first appeal? 2. Since the first appeal has been dismissed consequent to the dismissal of I.A.No.1064 of 2007 seeking to condone delay of 88 days, it is agreed by both sides that it is not necessary to call for the records for the disposal of the Second Appeal on the substantial question of law above framed. 3. Respondent filed a suit for declaration and mandatory injunction against the appellants in the court of learned Principal Munsiff-I, Kozhikode. Learned Principal Munsiff-I as per judgment and decree dated 7.10.2006 granted decree in favour of the respondent holding that she is entitled to get family pension from the appellants with effect from 1.1.2001 and directing appellants to disburse the same within two months from date of decree. Appellants sought to RSA No.607/2009 2 challenge that judgment and decree and filed A.S.No.100 of 2007 in the court of learned Additional District Judge-I, Kozhikode accompanied by I.A.No.1064 of 2007 supported by an affidavit to condone the delay of 88 days in filing the appeal. That application was opposed by the respondent and vide order dated 16.8.2007, the application was dismissed holding that no sufficient cause has been shown by the appellants to condone the delay. Consequently, first appeal was also dismissed against which this Second Appeal is preferred. It is contended by learned counsel for appellants that sufficient cause was shown for condonation of delay in the affidavit in support of I.A.No.1064 of 2007 which the learned counsel explained before me. According to the learned counsel for respondent, no sufficient cause was shown. 4. Appellants are the Union of India represented by Secretary of Ministry of Defence and the officials of the Indian Army stationed at different places. Appellant No.2 is stationed at Secondarabad while appellant No.3 is at Allahabad. Appellant No. 4 is at Calicut. In the affidavit in support of the application to condone delay it is stated that since the offices of the superior officers are located at different places in Indian, after getting the copy of judgment and decree of the trial court the same had to be forwarded to Delhi and then to other places where the superior officers are stationed for getting opinion as to the feasibility of filing the appeal. Officials had to make several communications to various offices to get opinion and ultimately to decide to file RSA No.607/2009 3 the first appeal. 5. Question whether latitude to be shown to the Government while considering the issue of delay was considered by the Apex Court in State of Nagaland v. Lipok AO (2005 (2) KLT 547). It was held , “................... The law of limitation is , no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of S.5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these facts which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. ............ “ Same view was taken by the Supreme Court in State (NCT of Delhi) RSA No.607/2009 4 v.Ahmed Jaan (2008 (3) KLT SN 88 (case No.108)) and Pundlik J. Patil v. Executive Engineer (2009 (1) KLT SN 25 (Case No.26). Therefore, some sort of latitude is not impermissible when delay is sought to be condoned on behalf of the Government provided, ofcourse appropriate cause is shown. In this case, fact remained that appellant Nos.2 to 4 as well as their superior officers are stationed at different States in the country and as stated in the affidavit the opinion of the superior officers stationed at different places had to be obtained before filing the appeal. Delay involved is only 88 days. There is no reason to think that the delay is willfully caused. I am satisfied that the delay has been properly and sufficiently explained. The mere fact that respondent is aged 75 years by itself is no ground to refuse to condone the delay in the circumstances which I have stated above. In view of the above, the order dismissing the application to condone delay is liable to be set aside and I do so. The substantial question raised is answered accordingly. Second Appeal therefore is allowed. Order on I.A.No.1064 of 2007 and consequent dismissal of A.S.No.100 of 2007 are set aside. I.A.No.1064 of 2007 will stand allowed. Appeal is sent to the court of learned First Additional District Judge, Kozhikode who shall consider the appeal as provided under Order 41 Rule 11 of the Code of Civil Procedure and pass appropriate orders. In case appeal is admitted, learned First Additional District Judge shall dispose of the RSA No.607/2009 5 appeal as early as possible considering the age of the respondent and her pressing need. Parties shall appear in the court of learned First Additional District Judge, Kozhikode on 20.11.2009. I.A.No.2240 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks