The Executive Engineer KPI P Division No.1, Kanhirapuzha, Palakkad and State of Kerala represented by the District Collector, Palakkad v Modutty Haji S/o Alavikutty Haji

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 25TH DAY OF MAY 2018 / 4TH JYAISHTA, 1940 (ORDER DATED 02.09.2017 IN I.A.NO.163/2017 IN A.S.NO.185/2013 OF THE 1ST ADDL.DISTRICT COURT, PALAKKAD) APPELLANTS/APPELLANTS 1. THE EXECUTIVE ENGINEER - K.P.I.P, DIVISION NO.1, KANHIRAPUZHA, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD BY GOVERNMENT PLEADER SRI.SUNILKUMAR KURIAKOSE RESPONDENT(S)/RESPONDENT/PLAINTIFF: MODUTTY HAJI S/O.ALAVIKUTTY HAJI, RESIDING AT KILIYANNIL HOUSE, KOOTTILANGI PO, MALAPPURAM DISTRICT 676 506. BY ADV. SRI.P.JAYARAM THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.** ******************************** F.A.O.No.4 of 2018 ---------------------------------------------Dated this the 25[th] day of May, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This appeal is filed by the State and an Executive Engineer under it challenging the orders passed by the Additional District Court -I, Palakkad in the applications filed as I.A.Nos.162 and 163 of 2017 in the appeal A.S.No.185 of 2013 on the file of that Court. 2. The respondent in the appeal is the plaintiff in the suit O.S.No.26 of 2011 on the file of the Subordinate Judge's Court, Ottappalam. The aforesaid suit was filed by him against the appellants herein for realisation of an amount of Rs.1,31,424/-, allegedly due to him from the Government pursuant to a contract work done by him. The suit was decreed in part by the Subordinate Judge's Court allowing F.A.O.No. 4 of 2018 2 the plaintiff to realise an amount of Rs.1,27,713/- with interest @ 12% per annum from the date of the suit till the date of the decree and thereafter @ 6% per annum till the date of realisation. The State and the Executive Engineer concerned filed an appeal before the District Court, Palakkad challenging the decree passed against them in the suit. When the appeal came up for hearing before the Additional District Court-I, Palakkad on 23.06.2016, there was no representation for the appellants and the appeal was dismissed for default. Thereafter, the appellants herein filed application as I.A.No.163 of 2017 for re-admitting the appeal to file and also I.A.No.162 of 2017 for condoning the delay of 219 days in filing the application for restoration of the appeal. As per the order dated 02.09.2017, the Additional District Court-I, Palakkad dismissed the application I.A.No.162 of 2017 stating that there was no sufficient cause shown by the appellants for the delay in filing the restoration application. Consequently, the application I.A.No.163 of F.A.O.No. 4 of 2018 3 2017 was also dismissed as barred by time. The State and the Executive Engineer concerned have preferred this appeal challenging the aforesaid orders passed by the Additional District Court-I, Palakkad. 3. We have heard the learned Government Pleader and also the learned counsel for the respondent. We have also perused the records. 4. The appeal A.S.No.185 of 2013 had come up for hearing before the Additional District Court-I, Palakkad on 23.06.2016. On that day, the Government Pleader concerned was absent and there was no representation for the appellants and therefore, the Additional District Court dismissed the appeal for default. It is stated that the Government Pleader concerned was engaged in one of the Additional Sessions Courts at Palakkad and he could not appear before the Additional District Court when the appeal was taken up for hearing. It was also stated that there was no wilful negligence or laches on the part of the Executive F.A.O.No. 4 of 2018 4 Engineer concerned to take steps for filing the application for restoration of the appeal to file and therefore, it was prayed that the delay of 219 days in filing that application may be condoned. 5. The respondent/plaintiff filed objections to the petitions and opposed the applications stating that the averment that the Government Pleader was engaged in the Additional Sessions Court is false and that the application was made without any bonafides and that the details given in the affidavit filed by the Executive Engineer were vague. 6. The Additional District Court-I, Palakkad found that there were factual mistakes in the affidavit filed by the Executive Engineer concerned and that the affidavit also did not contain details such as the case number and the court in which the Government Pleader was engaged and therefore, dismissed the application for condoning the delay in filing the restoration petition. Consequently, the application filed for restoration of the appeal was also dismissed. F.A.O.No. 4 of 2018 5 7. We have anxiously considered the submissions made by the learned Government Pleader and the learned counsel for the respondent. In our view, the Additional District Court-I, Palakkad should have considered the applications filed by the State through the officials in a broader perspective. It was most likely that the Government Pleader concerned was engaged in one of the Sessions Courts at the station at the time when the appeal was taken up for hearing and it was the reason for his non-appearance before the Court. It is a reality that at a station where several Additional District Courts/Additional Sessions Courts are functioning, there would not be a Public Prosecutor/ Government Pleader attached to each such court. When a Public Prosecutor/Government Pleader has to attend the matters of more than one court, it is quite natural that some lapses occur on his part. It would be a travesty of justice to penalise the Government for such lapses especially when a case involves disbursement of public money. F.A.O.No. 4 of 2018 6 8. Regarding the delay in filing the application for restoration of the appeal to file, the lower court should have taken note of the fact that being a government servant, the Executive Engineer concerned would have taken some time to get the concurrence of his superiors and to file the applications through the Government Pleader. In such cases, technicalities of procedure should yield to considerations which would promote public interest and substantial justice and the lower courts shall take a liberal view in exercising the discretion in condoning the delay. 9. True, if there is negligence, deliberate or gross inaction or lack of bonafides on the part of the party or its counsel, there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays in F.A.O.No. 4 of 2018 7 preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of the delay. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by government are lost for such defaults, no person is individually affected. What, in the ultimate analysis, suffers is public interest. The decisions of the government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. In assessing what, in a particular case, constitutes 'sufficient cause' for the purpose of Section 5 of the Limitation Act, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, the factors which are peculiar to and characteristic of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of F.A.O.No. 4 of 2018 8 procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible (See **G.Ramegowda v. Special Land Acquisition Officer: AIR 1988 SC 897** ). 10. In **State v. Ahmed Jaan : (2008) 14 SCC 582** , the Supreme Court has held as follows: _“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 and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in_ F.A.O.No. 4 of 2018 9 _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 a vis private litigant could be laid to prove strict standards of sufficient cause. ….. Equally, 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”._ 11. Keeping in mind the principles stated above, we are of the view that the lower court should have condoned the delay of 219 days in filing the application for restoration of the appeal. 12. The factual mistake pointed out by the lower court in the affidavit filed by the Executive Engineer concerned regarding the name of the trial court is inconsequential. It was an application filed for re-admitting the appeal which was dismissed for default. The number of the appeal and the the name of the appellate court have been shown correctly. F.A.O.No. 4 of 2018 10 Therefore, there was no mistake in stating material facts. 13. Consequently, we allow the appeal and set aside the orders passed by the Additional District Court-I, Palakkad in I.A.Nos. 162 and 163 of 2017 in A.S.No.185 of 2013 of that Court. We allow the aforesaid applications and restore the appeal to the file of the Additional District Court-I, Palakkad. The parties shall appear before that court on 02.07.2018 without further notice. No costs in the appeal. (SD/-) ## **P.N.RAVINDRAN, JUDGE** (SD/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr