Nizar and Sudheena v. Power Grid Corporation of India Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** ## **F.A.O. NO.182 OF 2019** **ORDER DATED 08.03.2018 IN I.A. NOS.1949 & 1950 OF 2017 IN O.P.(ELE) NO.249 OF 2011 ON THE FILE OF THE IST ADDITIONAL DISTRICT COURT, KOLLAM** ## **APPELLANTS:** - **1 NIZAR, AGED 38 YEARS, NIZAR MANZIL, S/O BASHEER, URUKUNNU P.O., THENMALA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 691307.** - **2 SUDHEENA, AGED 32 YEARS, NIZAR MANZIL, W/O NIZAR, URUKUNNU P.O., THENMALA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT- 691307.** **BY ADV. G.VIDYA** ## **RESPONDENTS:** - **1 THE CHIEF MANAGER, POWER GRID CORPORATION OF INDIA LTD, VILAKAMPURAYIDOM, DOCTORS LANE, PATHANAMTHITTA - 689 645.** - **2 THE SPECIAL TAHSILDAR(COMPENSATION) POWER GRID CORPORATION OF INDIA LTD, LA(PGCI) , VILAKAMPURAYIDOM, DOCTORS LANE, PATHANAMTHITTA689645.** ## **BY ADV MILLU DANDAPANI** ## **SRI JOBY JOSEPH - GOVERNMENT PLEADER** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O. NO.182 OF 2019 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants filed I.A. Nos.1949 and 1950 of 2017 in O.P.(Ele) No.249 of 2011 on the file of the 1[st] Additional District Court, Kollam, which are applications filed for restoration of O.P.(Ele) No.249 of 2011, which was dismissed for default, and to condone the delay of 2093 days in filing the application for restoration. By a common order dated 08.03.2018, the court below dismissed those applications. The said order reads thus; “There are two petitioners in this case. This I.A. is to condone the delay of 2093 days in filing the restoration application filed for restoring OP which was dismissed for default on 21.02.2012. It is well settled that the delay cannot be condoned as a matter of course. Each and every days delay has to be explained. The explanation offered is that the 2[nd] petitioner was laid up due to fever and 2[nd] petitioner was of out of station for employment. Hence the O.P. was dismissed on 21.02.2012. Now the 2[nd] petitioner is ready to adduce evidence. Hence the delay is to be condoned. In fact there is no explanation offered for the inordinate delay of 2093 days. I find no ground to condone the delay. Hence this I.A. under Section 5 of the Limitation Act is dismissed.” 2. Feeling aggrieved by the order dated 08.03.2018 of the court below, the appellants are before this Court in this F.A.O. NO.182 OF 2019 3 appeal filed under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908. 3. This appeal was filed along with C.M. Application No.1 of 2019, seeking an order to condone the delay of 475 days. By the order dated 07.02.2020, that application was allowed and the delay was condoned. 4. On 25.03.2021, this Court admitted the appeal on file. The learned Standing Counsel for Power Grid Corporation, took notice for the respondents. 5. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Power Grid Corporation, for the respondents. 6. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 08.03.2018 of the court below, whereby I.A. Nos.1949 and 1950 of 2017 in O.P.(Ele) No.249 of 2011 stands rejected for the reason stated therein. 7. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of F.A.O. NO.182 OF 2019 4 prescribed period in certain cases. As per Section 5, 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. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 8. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the Court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the Court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient F.A.O. NO.182 OF 2019 5 cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 9. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the Limitation Act, 1963, the Apex Court held that, 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. 10. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the F.A.O. NO.182 OF 2019 6 ## first one warrants strict approach whereas the second calls for a liberal delineation. 11. Though the expression 'sufficient cause' employed in Section 5 of the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no Court shall deal with such an application in a routine manner. 12. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice F.A.O. NO.182 OF 2019 7 to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 13. In **Shukla and Brothers** the Apex Court held further that, a litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to F.A.O. NO.182 OF 2019 8 know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 14. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court held that, in view of the law laid down by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** , an application for condonation of delay should be drafted with careful concern and not in a half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a _lis_ on merits is seminal to justice dispensation system. Such an application should be drafted with careful concern and no court shall deal with the same in a routine manner. The Division further held that, in view of the law laid down by the Apex Court in **Shukla and Brothers [(2010) 4 SCC 785]** , the order passed by the Rent Control Appellate Authority, on an application for condonation of delay filed under Section 5 of the Limitation Act, should give brief reasons for arriving at a conclusion that the appellants have shown 'sufficient cause' for condonation of delay in filing the F.A.O. NO.182 OF 2019 9 appeal, after adverting to the contentions raised in the objection filed by the respondents, showing proper application of mind. The respondents in an application for condonation of delay are entitled to know the reasons for rejection of their objections. 15. In the instant case, I.A.No.1949 of 2017 is one filed by the appellants seeking an order to restore O.P.(Ele)No.249 of 2011, which was dismissed for default on 21.02.2012. That application was accompanied by I.A.No.1950 of 2017 for condonation of delay of 2093 days. By the impugned order dated 08.03.2018, the court below dismissed both the applications, on the ground that there is no explanation offered for the inordinate delay of 2093 days. The impugned order of the court below does not disclose brief reasons for arriving at a conclusion that the appellants have not shown 'sufficient cause' for condonation of delay in filing the application for restoration, after adverting to the cause stated for condonation of delay and the contentions raised in the objection filed by the respondents, showing proper application of mind. 16. It is pertinent to note that, in the objection filed by the respondents, reliance was placed on the decision of the F.A.O. NO.182 OF 2019 10 Apex Court in **Basawaraj v. Special Land Acquisition Officer [(2013) 14 SCC 81]** , wherein it was held that if courts start condoning delay where sufficient cause was not made out, by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the Legislature. 17. The learned counsel for the appellants relied on the law laid down in **K. Subbarayudu v. Special Deputy Collector (Land Acquisition) [(2017) 12 SCC 840]** , wherein the Apex Court reiterated that the term 'sufficient cause' is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fides is attributable to the appellants. In the said decision, the Apex Court held that while dealing with application for condonation of delay in land acquisition matters for enhancement of compensation in the case of agriculturists, courts ought to adopt a pragmatic approach to award just and reasonable compensation and not a pedantic approach. 18. The learned counsel for the appellants would point out that the total compensation awarded to the appellants is only Rs.5,517/- and it is seeking enhancement of that F.A.O. NO.182 OF 2019 11 compensation for the trees cut and removed while drawing 440 KV electric line and also claiming land value for the property adversely affected, the appellants have filed O.P.(Ele)No.249 of 2011 before the court below. 19. The learned Standing Counsel for Power Grid Corporation would point out the judgment of a Division Bench of this Court dated 15.06.2020 in F.A.O.No.188 of 2019, arising out of the interlocutory applications filed in O.P.(Ele)No.58 of 2005 on the file of the court below. That original petition was also dismissed for default and the application filed by the legal representative of the deceased claimant for restoration and for condonation of delay were dismissed. F.A.O.No.188 of 2019 was filed along with an application for condonation of delay, which was allowed by order dated 19.02.2019, subject to the condition that the appellants therein will not be entitled to get interest during the period of delay. In the judgment dated 15.06.2020, while allowing F.A.O.No.188 of 2019, the Division Bench of this Court noticed that such deprivation of interest during the period of delay will be more than sufficient penalty upon the appellants therein for the delay occasioned. 20. In the instant case, the delay of 475 days in filing the F.A.O. NO.182 OF 2019 12 appeal was condoned by the order dated 07.02.2020, without imposing any such condition. 21. The question as to whether the delay of 2093 days in filing the application to restore O.P.(Ele)No.249 of 2011 has to be considered by the court below, after considering the explanation offered by the appellants and also the objections raised by the respondents. 22. Viewed in the light of the law laid down in **Rafeek [2021 (4) KHC 34]** , the impugned order of the court below dated 08.03.2018 in I.A.Nos.1949 and 1950 of 2017 in O.P. (Ele)No.249 of 2011, which does not disclose brief reasons for arriving at a conclusion that the appellants have not shown sufficient cause for condonation of delay in filing the appeal, after adverting to the cause stated for condonation of delay and the contentions raised in the objection filed by the respondents, showing proper application of mind, cannot be sustained in law. Such a cryptic order passed by the court below suffer from the vice of arbitrariness. 23. In the result, this appeal is allowed by setting aside the order dated 08.03.2018 of the 1[st] Additional District Court, Kollam in I.A.Nos.1949 and 1950 of 2017 in O.P.(Ele)No.249 of F.A.O. NO.182 OF 2019 13 2011 and by directing the said court to consider those interlocutory applications afresh, taking note of the law laid down in the decisions referred to supra and pass an appropriate order, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. In case the above interlocutory applications are allowed, the court below shall finally dispose of O.P.(Ele)No.249 of 2011, as expeditiously as possible, at any rate, within a further period of five months. **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** **K. BABU, JUDGE** MIN