State of Kerala and others v. M.A. Aboobacker

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 RSA.No. 1333 of 2009() ---------------------AGAINST THE ORDER DATED 21/11/2009 IN IA.1468/2009 IN AS.313/2009 of DISTRICT COURT, PALAKKAD. OS.276/2000 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS ----------------------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, (STORES AND PURCHASE), THIRUVANANTHAPURAM DISTRICT. 3. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, DISTRICT STORES, JAINIMEDU, VADAKKANTHARA AMSOM, PALAKKAD. BY GOVERNMENT PLEADER SMT. P.N.SUMANGALA RESPONDENT(S)/RESPONDENT/PLAINTIFF ------------------------ M.A.ABOOBACKER, S/O.M.A.ABDUL KHADER HAJI, 65 YEARS, P.W.D.CONTRACTOR, MUNAMBA HOUSE, CHENGOLA POST, KASARAGOD DISTRICT. ADV. SRI.P.K.MUHAMMED THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.1333 of 2009 -------------------------------------Dated this the 18[th] day of February, 2010.** ## **JUDGMENT** Substantial question of law framed for a decision in this appeal is: “Whether the first appellate court was legally correct in dismissing I.A.No.1468 of 2009 on the facts and circumstances of the case?” Second Appeal arises from judgment and decree of learned District Judge, Palakkad in A.S.No.313 of 2009. That was an appeal preferred by the appellants against judgment and decree of learned Additional Sub Judge, Palakkad in O.S.No.276 of 2000. Appeal was presented before the learned District Judge with a delay of 1882 days and to condone that, appellants filed I.A.No.1468 of 2009 which the learned District Judge for the reason that no sufficient cause is made out, dismissed. Consequently the appeal also was dismissed. It is contended by learned Government Pleader appearing for appellants that while considering I.A.No.1468 of 2009 and deciding not to condone the delay, learned District Judge has not considered whether appellant had a valid ground to be urged in the appeal against judgment and decree of the trial court. It is the contention of learned Government Pleader that in the case of the Government some degree of latitude in the matter of condonation of delay is not impermissible. Reliance is placed on the decision of the Supreme Court in **RSA No.1333/2009** 2 ## **State of Haryana v. Chandra Mani and others (AIR 1996 SC** **1623)** . Learned Government Pleader requested that appellants may be given an opportunity to challenge the judgment and decree of the trial court on merit. Learned counsel appearing for respondent would contend that condonation of delay should be on the facts pleaded and that if materials placed before the court did not show sufficient cause for the delay, the court could not condone the delay. Question of exercise of discretionary power would arise only if sufficient cause for the delay is shown. It is the contention of learned counsel that the statute of limitation is biased on public policy and that state claims could not be permitted to be agitated after long lapse of time. 2. A learned Single Judge of the Rajasthan High Court in **Urban** ## **Improvement Trust v. Poonam, Chand (AIR 1997 Rajasthan 134)** has taken the view that while considering an application to condone the delay, courts should have a glance on the merits of the appeal. It is held that before rejecting applications under section 5 of the Limitation Act (for short, “the Act”) and consequently dismissing the appeal as barred by lapse of time courts of law are required to put a glance on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merit ordinarily effort should be made to decide the appeals on merits. In the decision of the Supreme Court relied on by learned Government Pleader it is held that court should decide the matter on merit unless the case is hopelessly without merit and that State cannot be put **RSA No.1333/2009** 3 on the same footing as an individual. The latter would always be quick in taking a decision whether he should 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 servants. In **Sebastian v. State** **Bank of Travancore (2006(2) KLT SN 27 (C. No.38))** a Division Bench of this Court held that “as far as possible a citizen is entitled to have decision of his cause on merits and that unless his conduct is contumacious and the grounds pleaded be wholly insufficient or patently false the delay in bringing about a cause should normally be condoned.” Same is the view taken by the Supreme Court in **State (NCT of Delhi) v. Ahmed Jaan (2008 (3) KLT** **SN 88 (C.No.108)** . It is held that State cannot be put on the same footing as an individual and a more pragmatic approach should be adopted. Supreme Court stated: “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 and 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 **RSA No.1333/2009** 4 on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision 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 servants.” ## In **R.B.Ramlingam v. R.B.Bhavaneswari ((2009) 1 SCC (Cri.) 840)** Supreme Court explained the meaning of the expression “sufficient cause” and stated that it is purely an individualistic test. The word “sufficient” means adequate, effective, sufficient quantity, enough while the word “cause” means that which produces an effect by or through which anything happens, a motive, an inducement, etc. 3. Going by the above decisions some sort of latitude in favour of the Government is not impermissible when considering the question of condonation of delay. Courts, before deciding the application for condonation of delay must **RSA No.1333/2009** 5 also have a glance on the merits of the case. Keeping in mind the decisions referred supra I shall consider whether learned District Judge was correct in dismissing I.A.No.1468 of 2009. 4. To decide that, it is also necessary to look into the contentions raised by the parties before the learned Munsiff. It is not disputed that respondent was a contractor under the appellants. According to him, due to the nation-wide lorry strike which commenced on 1.4.1997 he was not able to clear the load of the cement that reached Palakkad Railway Junction on 31.3.1997 and the same could be removed only on 10.4.1997 after the strike was withdrawn. Another consignment arrived at the same station on 10.6.1997 but the railway authorities did not release the same to the respondent till 29.6.1997 as demurhage charge of Rs.67,646/- payable for the previous consignment was not paid to the railway. Hence when the final bill was prepared by the department they forfeited Rs.1,11,115/- from the amount due to the respondent. For realisation of that amount he sued the appellants in the court of learned Sub Judge. It is contended by learned Government Pleader relying on Clause 17 of the special contract entered between the parties that the responsibility to pay demurhage was on the contractor and there was no obligation for the PWD department to pay the same. It is the contention of learned Government Pleader that the principle of frustration has no application to the facts of the case since according to the learned Government Pleader **RSA No.1333/2009** 6 lorry strike cannot be said to be something which could not be contemplated by the parties at the time of entering into the contract. Learned Government Pleader contended that appellants had a good case to be argued before the learned District Judge which was not considered by the learned District Judge while deciding I.A.No.1468 of 2009. 5. Learned District Judge had to bear in mind whether appeal preferred by the appellants was wholly without any merit . Such a consideration is not seen to have been made by the learned District Judge. Instead, application for condonation of delay was considered and a finding was entered that no sufficient cause was made out. That view according to me, in the light of the decisions referred above is not legally correct. The contentions advanced by the appellants in the appeal required consideration. 6. Now I shall refer to the circumstances which according to the appellants delayed filing of the appeal. It is stated that the case was being handled by the Assistant Executive Engineer, PWD, District Stores, Palakkad. That office was abolished and charge of that office was handed over to appellant No.3 on 29.3.2008 but the case file was not received in his office on time. Case file happened to be misplaced among the bundles of files. Due to shortage of staff proper follow-up action could not be taken in the office of appellant No.3. It is pleaded that there was no willful default on the part of his **RSA No.1333/2009** 7 office and hence the request that delay may be condoned. Application was opposed by the respondent. He denied all the contentions/allegations raised by appellant No.3 and contended that there was no proper explanation for the delay. 7. After hearing counsel on both sides and going through the affidavit of appellant No.3 in support of the application to condone delay I am not inclined to think that the reasons stated are false. It is possible that while the files were shifted from one office to another the file concerned happened to be misplaced. Though dealing with an application under Order 9 Rule 9 of the Code of Civil Procedure for short, “the Code”) Justice V.R.Krishna Iyer in **Sreedhara Kurup v. Mickel (1968 KLT 599)** explained the meaning of the word “sufficient cause”. Learned Judge reminded, “........it has always to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been **RSA No.1333/2009** 8 taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs.” I do not forget that these observations were made with regard to an application for restoration of the suit but as in a case of restoration of suit, in the matter of condonation of delay also what is required to be shown is “sufficient cause”. I am inclined to think that in the absence of gross negligence or carelessness amounting to the contumacious conduct on the part of appellants, they should be given an opportunity to raise their contentions on the correctness of the trial court judgment and decree in the first appellate court. 8. But I must bear in mind plight of the respondent who has been fighting this litigation from 2000 onwards. He got a favourable verdict on 30.6.2004. Appellants did not challenge the judgment and decree within the time prescribed. The delay involved in this case is 1882 days. While giving an opportunity to the appellants to raise their contentions regarding correctness of the judgment and decree under challenge at a belated stage respondent who has suffered loss on account of non-payment of the amount allegedly due to him and the appellants not filing the appeal on time has to be compensated. Having regard to the circumstances of the case I am inclined to allow **RSA No.1333/2009** 9 I.A.No.1468 of 2009 on condition that appellants paid Rs.15,000/- (Rupees fifteen thousand only) by way of cost to the respondent within a month from this day. 9. The cost if paid, certainly is from the State Exchequer. That is the money of the people of the State. For the laches of the officer concerned there is no reason why the people of the State should suffer and pay through their nose. Hence on the appellants making payment of Rs.15,000/- to the respondent the State and department concerned shall fix liability on the officer who is responsible for the delay and realise the said sum of Rs.15,000/- from him. Resultantly this Second Appeal will stand allowed in the following lines: i. Dismissal of I.A.No.1468 of 2009 and consequently dismissal of A.S.No.313 of 2009 of the court of learned District Judge, Palakkad will stand set aside and the application allowed on condition that appellants deposited in the first appellate court for payment to the respondent Rs.15,000/- (Rupees Fifteen thousand only) by way of cost within one month from this day. In case of noncompliance this Second Appeal will stand dismissed in confirmation of dismissal of I.A.No.1468 of 2009 and A.S.No.313 of 2009. **RSA No.1333/2009** 10 ii. In case cost as aforesaid is deposited within the time specified, appellants shall appear in the court of learned District Judge on 30.03.2010. Appellants shall also give notice of deposit to the counsel for respondent in the first appellate court. Learned District Judge shall hear the appeal on admission as provided under Order 41 Rule 11 of the Code and pass appropriate orders. iii. I make it clear that to avoid delay, it will be open to the respondent also to appear in the court of learned District Judge on 30.03.2010 in case condition No.i is complied by the appellants. iv. Parties shall suffer their cost in this appeal. I.A.No.3057 of 2009 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**