Sheela Mohan v. Kerala State Electricity Board & Others (RP No.216 of 2021 in WA 442/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** **RP.No.216 OF 2021 IN WA. 442/2018** **AGAINST THE JUDGMENT IN WA 442/2018 IN W.P.(C)NO.6124 OF 2018 DATED 12.03.2018 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLNT:** **SHEELA MOHAN, AGED 62 YEARS, W/O.MOHAN, FLAT NO.16D, TOWER 1,PVS APARTMENTS, DESOM, ALUVA, ERNAKULAM DISTRICT, KERALA - 683 102.** **BY ADVS.SRI.E.ADITHYAN SRI.JOSE ABRAHAM(J-1406)** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY SECRETARY, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 001.** - **2 EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ANGAMALY SOUTH, ERNAKULAM - 683 573.** - **3 ACCOUNTS OFFICER, PENSION SANCTION, KSEB, PATTOM, TRIVANDRUM - 695 001.** - **4 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. SR.G.P.RI.RENIL ANTO KANDAMKULATHY** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 2 ## **ORDER** ## **Ravikumar, J.** ## C.M.Appl.No.1 of 2021 This is an application seeking condonation of the delay of 1056 days in filing petition seeking review of the judgment in W.A.No.442 of 2018. The appellant is the applicant. The judgment sought to be reviewed was passed on 12.3.2018 and going by the affidavit accompanying this application copy of the judgment was received by the counsel on 10.4.2018. The explanation for the delay, set up by the applicant, is evident from paragraph 3 of the affidavit and it reads thus:- “3. It is submitted that thereafter the petitioner had changed her lawyer and contacted a new lawyer at Ernakulam and took steps to file the review. It is submitted that it took some time to settle the review application and the review was filed only on 3.3.2021. It is submitted that there is a delay of 1056 days in filing the review petition. The delay is neither intentional nor willful. The delay in filing the review petition had occasioned due to change in the lawyer and misplacement of few records. There is no willful laches or negligence on the part of the review petitioner. If the delay of 1056 days in filing the above review petition is not condoned, petitioner will be put to irreparable damages and injuries.” R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 3 2. The delay of 1056 days in filing a review petition can only be said to be an inordinate delay and therefore, the question is whether the said extent of delay can be condoned accepting the reason mentioned in paragraph 3 of the affidavit accompanying this application as extracted herinbefore. In this context, the decisions of the Hon'ble Apex Court in **N.Balakrishnan** v. **M.Krishnamurthy** reported in **(1998) 7 SCC 123** and **Esha Bhattacharjee** v. **Managing Committee of Reghunathpur Nafar Academy and Others** reported in **(2013) 12 SCC 649** assume relevance. In the decision in **N.Balakrishnan's** case (supra) the Apex Court held as follows:- “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 very long range can be condoned as the explanation thereof is satisfactory.” 3. In **Esha Bhattacharjee's** case (supra) the Apex Court dealt with the obligation of the court while dealing with application for condonation of delay and the approach to be adopted while considering the grounds for condonation and summarised the principles by culling R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 4 out the principles from the various authorities such as **Balwant Singh** v. **Jagdish Singh [(2010) 8 SCC 685]** , **Maniben Devraj Shah** v. **Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157]** and **B.Madhuri Goud** v. **B.Damodar Reddy [(2012) 12 SCC 693]** and adding more guidelines, as follows:- - “The principles applicable to an application for condonation of delay are as follows: - i) There should be a liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. - ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining factsituation. - iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. - iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. - v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. - vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. - vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. - viii) 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 R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 5 attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. - ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. - x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. - xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. - xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. - xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. - xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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. - xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. - xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. - xvii) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 6 exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.'' 4. Taking note of the duration of the delay viz., 1056 days in filing a review petition we have already held that it is an inordinate delay. In the said circumstances, while considering the question whether the said delay was satisfactorily explained we will have to bear in mind the principles enunciated in the aforesaid decisions. On such consideration we have no hesitation to hold that taking into account the length of the delay viz., 1056 days that too for filing a review petition the question to be considered is whether the aforesaid explanation can be taken as a satisfactory explanation? Paragraph 2 and the aforeextracted paragraph 3 from the affidavit accompanying the delay petition would reveal that the judgment sought to be reviewed was pronounced on 12.3.2018 and the counsel had received the copy on 10.4.2018. The reason assigned is that the applicant had changed her lawyer and contacted a new lawyer at Ernakulam and took steps to file the review. It took some time to settle the review application and that it was filed only on 3.3.2021. Though it was stated that it was filed on 3.3.2021 the fact is that it was filed only on 8.3.2021. It is stated vaguely that the delay in filing the review petition had occasioned due R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 7 to the change in the lawyer and misplacement of few records. We have no hesitation to hold that the reasons thus assigned for the delay, taking note of the fact that inordinate delay had occasioned, cannot be taken at all as a satisfactory explanation. The prayer of the applicant in the writ petition was for ex-gratia pension. She joined the service of Kerala State Electricity Board on 6.9.1989 as Sub Engineer. She availed Leave Without Allowances for two years from 6.11.1991 and the same was extended for a further period till 5.1.1996. Later, she rejoined duty and obtained promotion as Assistant Engineer in 1996 and thereafter again entered on Leave Without Allowances for a further period of 12 years, 5 months and 2 days from 12.4.1997 to 12.2.2009, to accompany her husband abroad. She was given admissible terminal benefits and since she had only 8 years of qualifying service owing to the availing of Leave Without Allowances to the aforesaid extent the challenge against the denial of ex-gratia pension had failed and the appeal was filed in the said circumstances. The appeal was dismissed confirming the judgment in the writ petition. Taking note of all the aforesaid circumstances we have absolutely no hesitation to hold that the inordinate delay cannot be condoned owing to the absence of satisfactory explanation. The reason stated in the affidavit R.P.No.216 of 2021 in W.A.No.442 of 2018 & C.M.Appl.No.1 of 2021 in R.P.No.216 of 2021 8 accompanying the application as referred to hereinbefore, is absolutely unacceptable to condone an inordinate delay of 1056 days. In the circumstances, the application to condone the delay stands dismissed. ## **R.P.No.216 of 2021** In view of the dismissal of delay condonation petition this review petition is dismissed. **==> picture [36 x 12] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>**----- End of picture text -----**<br> **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS