IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5633 of 2010 BETWEEN: M/s.Pooja Electronics ..... PETITIONER(S) AND The Dy. Registrar of Co-operative Societies/Divisional Co-Operative Officer, Golkonda Division, Hyderabad and others .....RESPONDENT(S) HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5633 of 2010 ORDER: The proceedings, impugned in this writ petition, is the order passed by the 3rd respondent in an application filed under Section 76(3) of the Andhra Pradesh Co-Operative Societies Act, 1964 (hereinafter referred to as – ‘the Act’), refusing to condone the delay of 1164 days in preferring the appeal. The facts, in brief, are that the petitioner had earlier filed a Writ Petition seeking a mandamus from this Court to declare the Recovery Certificate dated 24.04.2006 issued by the 1st respondent as illegal and without jurisdiction. This Court, by order in W.P. No.12613 of 2006 dated 11.06.2008, held that an appeal lay, against the order, to the Tribunal under Section 76(3) of the Act. The writ petition was disposed of giving the petitioner the liberty to work out the remedy of an appeal. This Court directed that, if an appeal was filed within a period of four weeks from the date of its order, it should be entertained and appropriate orders passed thereupon in accordance with law. The petitioner preferred an appeal to the 3rd respondent- Tribunal, under Section 76(1) of the Act, 542 days thereafter i.e., nearly one and half years after the order was passed, in W.P. No.12612 of 2006, on 11.06.2008. The Tribunal, by the impugned order, held that in as much as this Court had granted four weeks time for filing the appeal, and the appeal was not filed within the time fixed by this Court, the petition to condone delay was not maintainable. The Tribunal also considered the petition on its merits and disagreed with the petitioner’s contention that because of house shifting the file was misplaced and hence the appeal could not be preferred in time. The Tribunal held that the delay in preferring the appeal was not just one or two days and, if indeed the file was misplaced, the petitioner could as well have obtained certified copies and prosecuted the case. Sri M. Laxmi Prasad, learned counsel for the petitioner, would submit that the jurisdiction conferred on the Tribunal under Section 76(3) of the Act is independent of any order which this Court may have passed; while the order of this Court required the Tribunal to automatically condone the delay in case an appeal was preferred within four weeks from the date of its order; the mere fact that an appeal was preferred thereafter did not bar exercise of discretion by the Tribunal, under Section 76(3) of the Act, to condone the delay; the Tribunal had erred in holding that the petition to condone the delay was not maintainable; observations made by the Tribunal on merits was only a passing reference and the order was founded mainly on the ground that the order of this Court, in W.P. No.12612 of 2006 dated 11.06.2008, rendered the application, filed under Section 76(3) of the Act seeking condonation of delay, not maintainable. Section 76(1) of the Act confers a right of appeal against an order passed under the Sections mentioned therein. Under Section 76(3) any appeal under sub-section (1) shall, subject to the other provisions of the Act, be preferred within sixty days from the date of communication to the appellant of the decision, refusal or order complained of. The Tribunal has been conferred discretion, under Section 76(3), to admit an appeal, preferred after the said period of sixty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. Rules of limitation 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. 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. A lifespan is, therefore, fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Prescription of limitation, for preferring an appeal, is 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). The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. (N. Balakrishnan v. M. Krishnamurthy[1]). In construing limitation it is relevant to bear in mind two important considerations. The first is that expiration of the period of limitation, prescribed for making an appeal, gives rise to a right in favour of the opposite party to treat the order as binding between the parties. In other words, when the period of limitation prescribed has expired the opposite party has obtained the benefit of treating the order as beyond challenge, and this legal right which has accrued to the opposite party by lapse of time should not be lightly disturbed. The other consideration is that, if sufficient cause for excusing delay is shown, discretion is given to the Tribunal to condone delay and admit the appeal. This discretion has been conferred on the Tribunal in order that discretion should be exercised to advance substantial justice. (State of W.B. v. Administrator, Howrah Municipality[2], Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd.[3]). The proof by sufficient cause is a condition precedent for exercise of discretion vested in the Tribunal. What counts is the sufficiency of the cause, and shortness of the delay is one of the circumstances to be taken into account in exercising discretion. The true guide for exercise of discretion to condone the delay is whether the appellant acted with reasonable diligence in prosecuting the appeal. (State of Nagaland v. Lipok Ao[4]; Brij Indar Singh v. Kanshi Ram[5]). Acceptability of the explanation for the delay is the main criterion in the exercise of discretion to condone the delay. (N. Balakrishnan1). The submission of Sri M. Laxmi Prasad, learned counsel for the petitioner, that the Tribunal is not denuded of its discretion to condone the delay under Section 76(3) of the Act, merely because this Court had directed it to condone the delay if an appeal was preferred within a period of four weeks, is well founded. It is, however, unnecessary for this Court to examine this question any further as the Tribunal had rejected the petition to condone the delay not merely on this ground but also on merits. The Tribunal noted that the only ground raised by the petitioner, in the affidavit filed in support of the petition to condone the delay, was that of misplacement of the file during house shifting. The Tribunal held that the delay was not just one or two days and that the appellant (the petitioner herein) could as well have obtained certified copies and prosecuted the case. Exercise of discretion can be interfered by the High Court only if the order passed is violative of some fundamental or basic principle of justice and fair play or suffers from any patent or flagrant error. (N. Balaji v. Virendra Singh[6]). I do not find any such element present vitiating the exercise of power vesting in the Tribunal. This Court, in proceedings under Article 226 of the Constitution of India, would not sit in judgment over exercise of discretion by Tribunals save perversity or unreasonableness. Refusal to condone the inordinate delay in preferring the appeal, viewed in the light of the vague averments in the affidavit filed in support of the petition before the Tribunal, can neither be said to be perverse or unreasonable. Exercise of jurisdiction, under Article 226 of the Constitution of India, is discretionary and is not exercised for the mere asking. Such Writs, as are referred to in Article 226, are intended to enable the High Court to issue them in grave cases where the subordinate tribunals act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made. (G. Veerappa Pillai v. Raman & Raman Ltd.,[7]; (Vice-Chancellor, Utkal University v. S.K. Ghosh[8]) . This Court would not, unlike a Court of appeal, reappreciate the findings of the Tribunal. If the view taken by the Tribunal is a possible view, this Court would refrain from exercising its discretion to interfere. It is only if the order of the Tribunal is without jurisdiction or there is an error of law apparent on record, that interference would be justified. The order, under challenge in this writ petition, does not suffer from any such infirmity warranting interference in proceedings under Article 226 of the Constitution of India. Even otherwise a perusal of the affidavit filed before the Tribunal, in support of the application to condone the delay, would show that the only reason furnished by the petitioner herein for condonation of the inordinate delay of 1164 days, or 542 days after the order of this Court, is that they had to shift their belongings, including the case file to which the impugned order pertained; in that process the entire file was misplaced and, despite sincere efforts, could not located earlier; they had to again apply for a fresh certified copy of the final order in W.P. No.12613 of 2006 on 21.07.2009; they obtained the certified copy from the High Court on 22.07.2009; in the meanwhile the case file was located with great difficulty; the file was found partially damaged and some of the case papers, like the impugned order in original and the Arbitration Application filed by the 2nd respondent before the 1st respondent, were lost; and they had taken photostat copies of the impugned order in W.P. No.12613 of 2006 and had filed it before the Tribunal. The affidavit does not give details as to when the documents were lost; what efforts were made to locate it; when they were located, etc. While Sri M. Laxmi Prasad, Learned counsel for the petitioner, would seek to justify the delay, in preferring the appeal before the Tribunal, for reasons other than those stated in the affidavit filed before the Tribunal in support of the petition seeking condonation of delay, it is necessary to bear in mind that questions of fact cannot, ordinarily, be permitted to be raised for the first time before this Court in proceedings under Article 226 of the Constitution of India. The Tribunal cannot be faulted, for refusing to condone the delay, on grounds not even raised before it or on facts not even pleaded in the petition filed before it seeking condonation of the delay in filing the appeal. The only reason given in the affidavit, filed in support of the petition to condone the delay, is misplacement of the file. Condonation of the delay of 1164 days in preferring the appeal, or for that matter the delay of 574 days after the order of this Court, was rightly refused by the Tribunal. Viewed from any angle, the order passed by the Tribunal does not merit interference in proceedings under Article 226 of the Constitution of India. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ______________________________ RAMESH RANGANATHAN, J. 11th March 2010 CVRK/mrkr/asp [1] (1998) 7 SCC 123 [2] (1972) 1 SCC 366 [3] AIR 1962 SC 361 [4] (2005) 3 SCC 752 [5] AIR 1917 PC 156 [6] (2004) 8 SCC 312 [7] 1952 SCR 583 [8] 1954 SCR 883