IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.773 of 2008 The Comm.Cum Secretary,Water Resources Department, Govt. of Bihar, Patna …..Respondent No.2-appellant Versus 1. RAJENDRA PRASAD SINGH,SON OF LATE BHUNESHWAR PRASAD SINGH, RESIDENT OF WEST PROFESSOR COLONY, SIVPURRI, P.O. AND P.S.SHASTRINAGAR, DISTRICT, PATNA 2. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 3. THE COMMISSIONER CUM SECRETARY, DEPATT. OF FINANCE, GOVT. OF BIHAR, PATNA 4. THE JOINT SECRETARY, DEPATT. OF WATER RESOURCES, GOVT. OF BIHAR, PATNA 5. THE ENGINEER IN CHIEF, WATER RESOURCES DEPATT. GOVT. OF BIHAR, PATNA 6. THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL PATH, PATNA 1 ……..RESPONDENTS/RESPONDENT NOS.1,3,4,5,6. RESPONDENTS. ----------- For the appellant : Mr. Prabhat Kumar Verma, AAG XI Mr. Prabhat Kumar Sharan, J.C. to AAG XI --------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 30th September, 2008. Letters Patent Appeal suffers from delay of one year two hundred sixty seven days. For condonation thereof, an application (I.A. No. 6092 of 2008) has been made. 2. The appeal is from the order dated 26th September, 2006 and it has been preferred on 7th July, 2008. 3. As per the averments made in the application, Government Pleader XVII informed the concerned department about the order dated 26th September, 2006. On 3th October, 2006, a letter - 2 - was written by the Under Secretary to Government Pleader XVII for obtaining certified copy of the order. The certified copy of the order was made available to the department on 3rd November, 2006. On 23rd November, 2006 file was put up by the Under Secretary before the Joint Secretary, who marked the file to the Deputy Secretary. On 5th December, 2006, the dealing officer put up the file to the Section Officer for placing the file before the Deputy Secretary who forwarded it to the Joint Secretary. On 5th January, 2007, the Under Secretary concerned marked it to another Under Secretary which was received in Section – 7 on 8th February, 2007. On 9th February, 2007, the dealing Assistant put up it to the Section Officer and the Section Officer marked it to the Under Secretary for discussion. On 19th February, 2007, after discussion, the Section Officer – 7 forwarded the file to the Under secretary for preparing the grounds for filing L.P.A. who on 21st March, 2007 directed the dealing Assistant to consult Government Pleader XVII for preparing grounds. On 3rd May, 2007, the dealing Assistant consulted the Government Pleader and forwarded the file to the Section Officer for further action. On 11th June, 2007, the dealing Assistant retired and the concerned dealing Assistant forwarded the file to another dealing Assistant who got the charge of the file and put up the file before the Under Secretary and on 14th June, 2007, the Under Secretary marked the file for further discussion. On 1st August, 2007, after preparing the grounds for L.P.A. the Under secretary moved the law department for getting their consent. On 2nd August, 2007, the Joint - 3 - Secretary put up the file to the Principal Secretary to get the consent of the law department who marked the file on 4th August, 2007. On 23rd August, 2007, after giving the opinion for filing L.P.A. the concerned file was returned back to the section for further action. The file was received by the concerned section on 24th August, 2007. On 27th August, 2007, the Under Secretary put up the file to the Joint Secretary for filing L.P.A. along with the limitation petition. On 28th August, 2007, the department requested the Government Pleader XVII for filing L.P.A. It is averred that since detailed grounds were not furnished by the department, the Government Pleader XVII directed the department for giving details of day to day delay. The file was received by the office of the Government Pleader XVII again on 3rd October, 2007. According to the application, after receiving full facts, the memo of appeal was affidavited by the competent authority. In the meantime, the conducting Government Pleader resigned. In the process, the file was transferred to Additional Advocate General XI. Then stated that in the month of May, 2008, a fresh affidavit was sworn for filing the appeal. 4. Mr. P.K. Verma, Additional Advocate General XI referred to two decisions of the Supreme Court namely – (i) State of Haryana Vs. Chandra Mani (1996) 3 Supreme Court Cases 132 and, (ii) Ram Nath Sao Vs. Gobardhan Sao 2002 (3) PLJR (SC) 247 and submitted that delay in filing the appeal deserves to be condoned. 5. In the case of State of Haryan Vs. Chandra Mani, the - 4 - Supreme Court observed thus: “11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court---be it by private party of the State--- are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal o merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on- the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay----intentional or otherwise--- is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression “sufficient cause” should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day‟s delay. The factors which are peculiar to an characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict stands of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorize the officers to take a decision or give - 5 - appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decisions whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servant. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay. 12. On the facts and circumstance of the case, we are of the opinion that it is a fit case for condoning the delay. The delay is accordingly condoned. The High court is requested to dispose of the appeal as expeditiously as possible.” 6. It is pertinent to notice that delay in the case of Chandra Mani was 109 days. It was also observed by the Supreme Court that there are no separate standards to determine the cause of delay by State functionaries or the private litigant and to prove sufficiency of cause. It has also been observed that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. 7. In so far as the case of Ram Nath Sao is concerned, the Supreme Court made following observations in explaining the expression “sufficient cause” – 9. In the case of „Rama Ravalu Gavade vs. Sataba Gavadu Gavade (dead) through LRs and another, (1997) 1 SCC 261, during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside the abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate Court to dispose of appeal on merit observing that the High Court was not right in - 6 - refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer. 10. In the case of N.Balakrishnan vs. M. Krishnamurthy, (1998)7 Supreme Court Cases 123, there was a delay of 383 days in filing application for setting aside ex parte decree for which application for condonation of delay was filed. the trial Court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial Court was not justified in condoning the delay resulting into reversal of its orders where-upon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial Court whereby delay in filing the application for setting aside ex parte decree was condoned and accordingly order of the High Court was set aside. K.T. Thomas, J. speaking for the Court succinctly laid down the law observing thus in paras 8,9 and 10: 8. The appellant‟s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 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 a 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 - 7 - 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 refuses 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 . 10………….. The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit filed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. (Emphasis added) The Court further observed in paragraphs 11,12,13 which runs thus:- 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law 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 litigqation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory67 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 in 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,(1969) 1 SCR 1006 and State of W.B. vs. - 8 - Administrator, Howrah municipality,(1972)1SCC 366. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses (Emphasis added). 11. Thus, it be comes plain that the expression “sufficient cause within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnish would constitute “sufficient cause” or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party; On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by defaulter or inaction and defeating valuable right of such a party to have the - 9 - decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. 12. In view of the foregoing discussions, we are clearly of the opinion that on the facts of present case, Division bench of the High Court was not justified in upholding order passed by the learned single Judge whereby prayers for condonation of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted. 13. In the result, the appeal is allowed, impugned orders passed by the High Court arte set aside and the matter is remitted back to the learned Single Judge for deciding the First Appeal on merits in accordance with law. In the circumstances of the case, we direct that the parties shall bear their own costs.” 8. In the discussion aforenoted, the Supreme Court, inter alia, made pertinent observation that the court should not lose sight of the fact that by not taking steps in time prescribed, a valuable right is accrued to the party which could not be lightly defeated by condoning the delay in routine like manner. The Supreme Court also held that there cannot be straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. Each case has to be considered on its own facts to find out whether the cause shown is „sufficient cause‟ within the meaning of section 5 of the Limitation Act or not. 9. We shall now turn to the cause shown in the present case. Although it is not stated in the application as to when the application for certified copy of the order dated 26th September, 2006 was made and on what date the said copy was received but even if, we - 10 - assume that it was received by the concerned department on 3rd November, 2006, we find that thereafter the matter has been dealt with by the concerned department as if there was no law of limitation prescribed in filing the appeal. It took twenty days for an Under Secretary to put up the file before the Joint Secretary for marking the file to Deputy Secretary. As noticed above, the certified copy was received by the department on 3rd November, 2006 but as the application reveals, on 23rd November, 2006, the file was put up by Under Secretary before the Joint Secretary for marking the same to the Deputy Secretary. Then, it took exactly one month in the movement of file from one Under Secretary to the other Under Secretary of the same department. Thereafter, again more than a month was taken in the file being received from the Under Secretary to Under Secretary to Section – 7. Then, the Section Officer discussed the matter at his own level and then forwarded the file to the Deputy Secretary for preparing the grounds for filing L.P.A. As a matter of fact more than six months were lost in the same department from the Joint Secretary to the Under Secretary to the section officer to the dealing assistant and the file continued to be tossed between them. It is strange that although the Government Pleader concerned gave its opinion in the month of August, 2007 but yet it took almost a year in filing the appeal inasmuch the appeal has been preferred on 7th July, 2008. If the file repeatedly moves in the same department between dealing Assistant, Section Officer, Deputy Secretary, Joint Secretary - 11 - and Principal Secretary, and the officials deal with the file at their leisure and pleasure and no sense of urgency is shown, in our opinion, by playing with the dates and giving the designation of the officers, the delay cannot be held to have been sufficiently explained. 10. As a matter of fact, paragraph 19 of the application does not make a sense at all. It reads thus: “Then again afford was made to file a fresh appeal, In the meantime further delay has been caused in the process. Now again a fresh affidavit is being. Facts sown for the fresh filing.” 11. The law department of the Government of Bihar is manned by senior judicial officers. It is assisted by large complement of law officers. The applications are drafted by law officers and vetted by the department, yet we are constrained to observe that paragraph 19 of the application is very difficult to understand. For filing an intra- court appeal the prescribed period is 30 days which is known to law department as well as law officers. Yet if the matters are dealt by the concerned officers without any sense of urgency, an important right created in favour of other side cannot be taken away lightly. 12. Having examined the cause shown by the appellants in the light of legal position expounded in the aforesaid two decisions, with all pragmatism and justice oriented approach, we find that long delay of almost 21 months cannot be held to be condonable. 13. Consequently, we reject the application for condonation of delay (I.A. No. 6092 of 2008). - 12 - 14. Since the appeal is barred by time and application for condonation of delay has been rejected by us, the appeal has to be dismissed as time barred. We order accordingly. R. M. Lodha, CJ. Kishore K. Mandal, J. Anil/