REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2909-2913 OF 2005
Lanka Venkateswarlu (D) by LRs. .. Appellants
VERSUS
State of A.P. & Ors ..Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. These appeals are directed against the order passed
by a Division Bench of the High Court of Judicature of
Andhra Pradesh at Hyderabad in CMP Nos. 21114,
21115, 21116, 21117 and 21118 of 2003 dated 19th
August, 2003. By the aforesaid order, the High Court
has allowed all the petitions/applications.
2. In the applications/petitions, respondent No.3,
herein, had sought the following directions:-
"
CMP
No. 21114/2003: Petition under
Order 22 Rule 4 of the CPC praying that in
the circumstances stated in the affidavit titled
therewith, the High Court will be pleased to
permit the petitioners to bring the above stated
persons as legal representatives of the
deceased sole respondent in Appeal
No. 8 of 1985 on the file of the High Court.
CMP No. 21115/2003: Petition U/s praying
that the High Court may be pleased to set
aside the dismissal Order dated 6.2.98 in AS
No.8 of 1985 and to restore the appeal to file.
CMP No. 21116/2003: Petition Under Order 9
Rule 9 read with section 151 CPC, praying that
the High Court may be pleased to set aside the
abatement caused due to the death of sole
respondent i.e. Lanka Venkateswarlu.
CMP No. 21117/2003:
Between
Sri D.E.V Apparao ...Petitioner/impleaded
Petitioner in AS No.8 of 1985 on the file of
High Court
And:
1. The State of A.P. rep. by District
Collector, Visakhapatnam.
2. The Tahsildar, Visakhpatnam
...Respondent/Appellants
3. Lanka Venkateswarlu (died)
...Respondent
2
Petition under Order 1 Rule 10 CPC, prays this
Hon'ble Court may be pleased to permit the
petitioners society to be impleaded as
appellant No.3 along with the appellants No. 1
and 2 in AS. 8 of 1985 on the file of the
Hon'ble Court to prosecute the appeal.
CMP No. 21118/2003: Petition U/s 5 of
Limitation Act praying the High Court may be
pleased to condone the delay of 883 days in
filing the petition seeking to set aside the
dismissal order dated 6.2.1998.
These petitions coming on for hearing, upon
perusing the petition and the affidavit filed in
support thereof and upon hearing the
arguments of Govt. pleader for Appeal for
Petitioners in CMP Nos. 21114, 21115, 21116,
21118 of 2003 and of Mr. K. Sarva Bhouma
Rao, Advocate for petitioner in CMP
No. 21117 of 2003 and of Mr. M.S.R.
Subramanyam, Advocate for the respondents
in CMP Nos. 21114, 21115, 21116, 21118 of
2003 and G.P. for Appeal for the respondents
in CMP No. 21117 of 2003."
3. We may now briefly notice the relevant facts as
stated in the pleadings of the parties and the impugned
order of the High Court. The predecessor of the
appellants, i.e., Shri Lanka Venkateswarlu, (hereinafter
referred to as `original plaintiff'), brought a suit O.S. No.
72 of 1979 before the subordinate judge Visakhapatnam
3
for the declaration of his title as the absolute owner of
the suit schedule property and for permanent injunction
restraining respondents Nos. 1 and 2 from interfering
with his peaceful possession. The suit schedule property,
to the extent of 2 acres was, according to the original
plaintiff, covered by survey No. 73/12 in Thokada village.
He had purchased the suit schedule property by a
registered sale deed dated 15th July, 1961 from one
Gonna Appanna son of Venkataswamy of China Gantyda
village. The original plaintiff was constrained to file the
aforesaid suit on coming to know that respondent Nos. 1
and 2 were claiming the suit schedule land to be "banjar
land" which vested in the Government. He had also
learned that the land was in imminent danger of being
illegally alienated by the respondent Nos. 1 and 2. They
were claiming that the land was required to issue Pattas
to weaker sections of society.
4. Respondent Nos. 1 and 2 were impleaded as the
defendants to the suit. Subsequently, the suit was
4
transferred to the Court of IVth Additional District Judge,
Visakhapatnam and renumbered as O.S. No. 83 of 1981.
5. The aforesaid averments of the original plaintiffs
were controverted by the respondent Nos. 1 and 2. It was
claimed that the plaint schedule property was not
covered by old survey No. 73/12 of the original village of
Thokada. The boundaries as well as survey number were
stated to be fictitious, forged and imaginary. Even the
ownership of the ancestors of the vendor of the original
plaintiff of the suit schedule land was denied. Further,
the alleged sale deed dated 15th July, 1961 between the
original plaintiff and the vendor was denied. It was also
stated that the original plaintiff was not in possession
and enjoyment of the plaint schedule property.
6. On the pleadings of the parties, the trial court
framed six issues. Issue No. 1 pertains to the title of the
original plaintiff to the schedule property. Issues No.2 &
3 were with regard to, whether the original plaintiff was
5
entitled to relief of declaration and injunction as prayed
for. Issue No.4 was whether the suit is not maintainable.
A perusal of the judgment of the trial court shows that
the suit was hotly contested on each and every issue.
Issues 1, 2, 3, 4 and 6 were decided in favour of the
original plaintiff and against the defendants, i.e.,
respondent Nos. 1 and 2. Issue No.5 with regard to
valuation of the suit was not pressed by the government
pleader. The suit was decreed by judgment dated
24th September, 1982.
7. The respondents challenged the aforesaid judgment
and decree by filing an appeal before the High Court of
Andhra Pradesh being A.S. No. 8 of 1985. The sole
respondent, i.e., original plaintiff died on 25th February,
1990. Therefore, the Advocate appearing for the
deceased original plaintiff being the `sole respondent' in
the appeal filed a memo before the High Court giving
intimation about the death of his client. The memo was
filed after giving notice to the advocate for respondent
6
Nos. 1 and 2, who were appellants in the aforesaid
appeals. In spite of such intimation, respondent Nos. 1
and 2 failed to bring the legal representatives of the
deceased original plaintiff on record.
8. From the judgment of the High Court it is apparent
that the appeal came up for hearing on 24th April, 1997.
At that stage, the counsel for the appellants again
brought to the notice of the Court that his client has
passed away on 25th February, 1990. The High Court
directed the government pleader to take steps to bring on
the record the legal representatives of the original
plaintiff and posted the matter for hearing on 16th June,
1997. It appears that no actions were taken by the
respondents to comply with the order passed by the High
Court on 24th April, 1997. Therefore, on 6th February,
1998, Justice V. Rajagopala Reddy, J. passed the
following order:-
"Appeal under Section 96 CPC against the
order of the Court of the IV Addl. District
Judge, Visakhapatnam dt.24.09.1982 in O.S.
No. 83/81.
7
This appeal coming on for orders under
Rule 64 of the Appellate Side Rules of the High
Court on the failure of the Appellant herein.
1. To take steps to bring on record the LRs. of
the deceased sole respondent.
In the presence of G./P. for Excise for the
Appellant and of Mr. M.S.R. Subramanyam,
Advocate for the respondent No.1.
It is ordered as follows:
1. That the Appellant do within one week from
the date of this order comply with the
requisitions of the Office referred to above
and;
2. That in default of compliance with the said
requisitions within the time prescribed in
clause 1 supra, the Appeal shall stand
dismissed as against the sole respondent
herein."
9. The aforesaid order was admittedly not complied
with. Consequently, the appeal stood abated in terms of
the order dated 6th February, 1998. It appears that
thereafter CMPSR No. 49656 of 2000 was moved by
respondent Nos. 1 and 2 seeking condonation of 883
days delay in filing the petition to set aside the dismissal
order dated 6th February, 1998. The application was
8
accompanied by an affidavit where it is candidly admitted
by respondent No.2 that the order dated 6th February,
1998 was not complied with. It was further admitted
that as the order dated 6th February, 1998 was not
complied with, the default order came into force and the
appeal stood dismissed.
10. In this affidavit, the explanation given is that the
predecessors of the officer, who affirmed the affidavit
dated 11th July, 2000 came to know about the dismissal
of the appeal during the course of investigation in
original O.S. No. 6 of 2000 which had been filed by the
widow and the children of the deceased original plaintiff,
i.e., sole respondent in the appeal. It is also admitted
that thereafter, an application was filed for setting aside
the order of abatement dated 6th February, 1998, but,
without any application seeking condonation of delay of
883 days in filing the petition. To cover the foresaid
lapse, CMP No. 21118 of 2003 was filed seeking
condonation of delay of 883 days in filing the petition.
9
11. Thereafter CMPSR No. 58644 of 2000 was filed on
17th August, 2000 with a prayer to condone the delay of
3703 days to bring the legal representatives on record.
CMPSR No. 58646 of 2000 was filed to bring the legal
representatives of the deceased original plaintiff on
record and CMPSR No. 58645 of 2000 to set aside the
order of dismissal in AS No. 8 of 1985 dated 6th February,
1998 was filed. These applications were subsequently
numbered as noted in the heading of the impugned
judgment.
12. It appears from the impugned order of the High
Court and CMPSR No. 58644 of 2000 was numbered as
CMP no. 17186 of 2000 on 17th August, 2000 and listed
before the Court on 27th September, 2000. The High
Court granted two weeks time for filing the counter. The
aforesaid CMP was posted for hearing before the bench
on 16th October, 2000 (Venkatanarayan,J.). At that time,
counsel for the deceased original plaintiff submitted that
1
his client had died in 1990 and he had no instructions.
Therefore, the Court directed to issue notice to the
parties on the petition. Even at that stage the
government pleader did not bring to the notice of the
Court that the applications filed by respondent Nos. 1
and 2 to set aside the order of dismissal and to bring the
legal representatives on record were pending
consideration.
13. Thereafter it appears the matter was adjourned on a
number of occasions from 27th June, 2001 to 9th April,
2002. Surprisingly, on 3rd June, 2002 the government
pleader again took time from the Court to verify whether
any separate application was filed for restoration of the
appeal and whether any such application was pending or
not. Thereafter the matter was not pursued by the
government pleader.
14. In the meantime, the alleged beneficiaries to whom
Pattas had been granted by the Government Poramboke
1
in the year 1979 filed CMP No. 21705 of 2000, seeking
permission of the Court to come on record as the third
appellant in the appeal. In the impugned order, it is also
pointed out that the pendency of the applications had
come to the notice of the Court intermittently. It appears
that the application to condone the delay in filing the
petition for setting aside the order of dismissal was filed,
when the lapse was pointed by the Court.
15. Thereafter, it seems that without the adjudication of
any of the applications on merits, the appeal was listed
for hearing before the Bench, which culminated into
passing the judgment and order dated 19th August, 2003,
subject matter of the present appeal. By the aforesaid
judgment, the High Court has allowed all the applications
restored the appeal posted it for hearing on 25th August,
2003.
16. This Court while issuing notice in the SLP
on 15th December, 2003 directed that "in the meantime,
1
proceedings in the appeal pending in the High Court
shall remain stayed". Therefore, it is evident that the
situation today is as it was when the order was passed on
6th February, 1998, i.e., appeal filed by the respondent
Nos. 1 and 2 stood abated and hence dismissed.
17. We have heard the learned counsel for parties.
Mr. P.S. Narasimha, senior advocate, appearing for the
appellant submitted that the impugned order of the High
Court cannot be justified on any legal ground. He
submits that the High Court having itself recorded the
utter negligence of the respondents in pursuing the
appeal at every stage, without any justification, condoned
the delay. The learned senior counsel pointed out that
there was no explanation, much less any plausible
explanation to justify the delay of 3703 days in filing the
application for bringing on record the LRs. of the sole
respondent or for the delay in filing the application for
setting aside the order dated 6th February, 1998. It was
further submitted that there was no justification to
1
permit the respondent No.3 to be impleaded as a party in
the appeal. Learned counsel relied on the judgment of
this Court in the case of Balwant Singh (dead) Vs.
Jagdish
Singh1
in support of the submission that the
law of limitation has to be enforced in its proper
prospective. Even though the Courts have power to
condone the delay, it can not be condoned without any
justification. Such an approach would result in rendering
the provisions contained in the Limitation Act redundant
and inoperative.
18. On the other hand, learned counsel for the
respondents relied on the judgments of this Court in the
case of N. Balakrishnan Vs. M.
Krishnamurthy2
,
Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram
Kini & Ors.3 and Sardar Amarjit Singh Kalra (dead) by
LRs Vs. Pramod
Gupta (dead) by LRs.4
and submitted
1 (2010)8 SCC 685
2 (1998) 7 SCC 123
3 (2003) 10 SCC 691
4 (2003) 3 SCC 272
1
that the High Court in condoning the delay has merely
advanced the cause of substantial justice.
19. We have considered the submissions made by the
learned counsel. At the outset, it needs to be stated that
generally speaking, the courts in this country, including
this Court, adopt a liberal approach in considering the
application for condonation of delay on the ground of
sufficient cause under Section 5 of the Limitation Act.
This principle is well settled and has been set out
succinctly in the case of Collector, Land Acquisition,
Anantnag & Ors. Vs. Katiji & Ors.5
20. In the case of M. Balakrishnan (supra), this Court
again reiterated the principle that rules of limitation are
not meant to destroy the rights of parties. They are
meant to see that the parties do not resort to dilatory
tactics, but seek their remedy promptly.
5 (1987) 2 SCC 107
1
21. In the case of Sardar Amarjit Singh Kalra (supra),
this Court again emphasized that provisions contained in
the Order 22 CPC were devised to ensure continuation
and culmination in an effective adjudication and not to
retard further progress of the proceedings. The provisions
contained in the Order 22 are not to be construed as a
rigid matter of principle, but must ever be viewed as a
flexible tool of convenience in the administration of
justice. It was further observed that laws of procedure
are meant to regulate effectively, assist and aid the object
of doing a substantial and real justice and not to
foreclose even adjudication on merits of substantial
rights of citizen under personal, property and other laws.
In the case of Mithailal Dalsangar Singh and Ors. Vs.
Annabai Devram Kini & Ors, (Supra), this Court again
reiterated that in as much as abatement results in denial
of hearing on the merits of the case, the provision of an
abatement has to be construed strictly. On the other
hand, the prayer of setting aside abatement and the
1
dismissal consequent upon abatement had to be
considered liberally. It was further observed as follows:-
"The Courts have to adopt a justice oriented
approach dictated by the uppermost
consideration that ordinarily a litigant ought
not to be denied an opportunity of having a lis
determined on merits unless he has, by gross
negligence, deliberate inaction or something
akin to misconduct, disentitled himself from
seeking the indulgence of the court."
22. The concepts of liberal approach and
reasonableness in exercise of the discretion by the Courts
in condoning delay, have been again stated by this Court
in the case of Balwant Singh (supra), as follows:-
"25. We may state that even if the term
"sufficient cause" has to receive liberal
construction, it must squarely fall within the
concept of reasonable time and proper conduct
of the party concerned. The purpose of
introducing liberal construction normally is to
introduce the concept of "reasonableness" as it
is understood in its general connotation."
"26. The law of limitation is a substantive law
and has definite consequences on the right
and obligation of party to arise. These
principles should be adhered to and applied
appropriately depending on the facts and
circumstances of a given case. Once a
valuable right has accrued in favour of one
party as a result of the failure of the other
party to explain the delay by showing sufficient
1
cause and its own conduct, it will be
unreasonable to take away that right on the
mere asking of the applicant, particularly
when the delay is directly a result of
negligence, default or inaction of that party.
Justice must be done to both parties equally.
Then alone the ends of justice can be achieved.
If a party has been thoroughly negligent in
implementing its rights and remedies, it will be
equally unfair to deprive the other party of a
valuable right that has accrued to it in law as
a result of his acting vigilantly."
23. Let us now examine as to whether the High Court
was justified in condoning the delay in the peculiar facts
of the presence case. The High Court in its judgment
records the following conclusions:-
"(1) The Government Pleader having filed the
appeal on 18.2.1983 has taken three long
years to get the appeal numbered.
(2) The sole respondent died in 1990. The
learned counsel for the respondent submits
that he served a letter on the learned
Government Pleader bringing to his notice
about the death of his client in 1990 itself.
Since the letter is not traced we are not giving
much importance to that fact. But at the same
time this fact was brought to the notice of the
Government Pleader on 24.2.1997 when the
appeal was listed for hearing.
(3) Even though the Court gave sufficient time
the Government Pleader has not taken any
steps to bring LRs. on record.
1
(4) After one year the Court passed a
Conditional Order on 6.2.1998 and the appeal
was dismissed for not bringing the LRs. on
record.
(5) After two more years the concerned
officials of the Government and the
Government Pleader in office at the relevant
point of time, filed some applications, which
are not in order.
(6) Even then they have not bestowed any
attention either to comply with the defects in
filing the application or in getting the orders
are passed on these applications. But at the
same time they went on taking time without
knowing for what purpose they were taking
time.
In the result an appeal which would have been
disposed of in 1997 remained pending all these
years mainly due to the negligence on the part
of the Government Pleader in office.
Thereafter at the two stages, the High Court records
that:-
"In the normal course we would have thrown
out these applications without having second
thought in the matter.............."
"We have already observed that in the normal
course we would have dismissed the
applications for severe latches on the part of
the appellants and their counsel."
1
24. Having recorded the aforesaid conclusions, the High
Court proceeded to condone the delay. In our opinion,
such a course was not open to the High Court, given the
pathetic explanation offered by the respondents in the
application seeking condonation of delay.
25. This is especially so in view of the remarks made by
the High Court about the delay being caused by the
inefficiency and ineptitude of the government pleaders.
The displeasure of the Court is patently apparent from
the impugned order itself. In the opening paragraph of
the impugned order the High Court has, rather
sarcastically, dubbed the government pleaders as without
merit and ability. Such an insinuation is clearly
discernable from the observation that "This is a classic
case, how the learned government pleaders appointed on
the basis of merit and ability (emphasis supplied) are
discharging their function protecting the interest of their
clients". Having said so, the High Court, graphically
narrated the clear dereliction of duty by the concerned
2
government pleaders in not pursuing the appeal before
the High Court diligently. The High Court has set out the
different stages at which the government pleaders had
exhibited almost culpable negligence in performance of
their duties. The High Court found the justification given
by the government pleaders to be unacceptable. Twice in
the impugned order, it was recorded that in the normal
course, the applications would have been thrown out
without having a second thought in the matter. Having
recorded such conclusions, inexplicably, the High Court
proceeds to condone the unconscionable delay.
26. We are at a loss to fathom any logic or rationale,
which could have impelled the High Court to condone the
delay after holding the same to be unjustifiable. The
concepts such as "liberal approach", "justice oriented
approach", "substantial justice" can not be employed to
jettison the substantial law of limitation. Especially, in
cases where the Court concludes that there is no
justification for the delay. In our opinion, the approach
2
adopted by the High Court tends to show the absence of
judicial balance and restraint, which a Judge is required
to maintain whilst adjudicating any lis between the
parties. We are rather pained to notice that in this case,
not being satisfied with the use of mere intemperate
language, the High Court resorted to blatant sarcasms.
The use of unduly strong intemperate or extravagant
language in a judgment has been repeatedly disapproved
by this Court in a number of cases. Whilst considering
applications for condonation of delay under Section 5 of
the Limitation Act, the Courts do not enjoy unlimited and
unbridled discretionary powers. All discretionary powers,
especially judicial powers, have to be exercised within
reasonable bounds, known to the law. The discretion
has to be exercised in a systematic manner informed by
reason. Whims or fancies; prejudices or predilections
can not and should not form the basis of exercising
discretionary powers.
2
27. The order of the High Court, in our opinion, is
based purely on the personal perceptions and
predilections of the Judges on the bench. The latent
anger and hostility ingrained in the expressions employed
in the judgment have denuded the judgment of
impartiality. In its desire to castigate the government
pleaders and the Court staff, the High Court has
sacrificed the "justice oriented approach", the bedrock of
which is fairness and impartiality. Judges at all levels in
this country subscribe to an oath when entering upon
office of Judgeship, to do justice without fear or favour, ill
will or malice. This commitment in form of a solemn oath
is to ensure that Judges base their opinions on
objectivity and impartiality. The first casualty of
prejudice is objectivity and impartiality. It is also well
known that anger deprives a human being of his ability
to reason. Judges being human are not immune to such
disability. It is of utmost importance that in expressing
their opinions, Judges and Magistrates be guided only by
the considerations of doing justice. We may notice here
2
the observations made by a Constitution Bench of this
Court in the case of State of U.P. Vs. Mohammad
Naim
6
, which are of some relevance in the present
context. In Paragraph 11 of the judgment, it was
observed as follows:-
"If there is one principle of cardinal importance
in the administration of justice, it is this: the
proper freedom and independence of Judges
and Magistrates must be maintained and they
must be allowed to perform their functions
freely and fearlessly and without undue
interference by any body, even by this Court.
At the same time it is equally necessary that in
expressing their opinions Judges and
Magistrates must be guided by considerations
of justice, fair-play and restraint. It is not
infrequent that sweeping generalisations defeat
the very purpose for which they are made. It
has been judicially recognised that in the
matter of making disparaging remarks against
persons or authorities whose conduct comes
into consideration before courts of law in cases
to be decided by them, it is relevant to
consider (a) whether the party whose conduct
is in question is before the court or has an
opportunity of explaining or defending himself;
(b) whether there is evidence on record bearing
on that conduct, justifying the remarks; and
(c) whether it is necessary for the decision of
the case, as an integral part thereof, to
animadvert on that conduct. It has also been
recognised that judicial pronouncements must
be judicial in nature, and should not normally
depart from sobriety, moderation and reserve."
6 (1964) 2 SCR 363
2
28. We are of the considered opinion that the caustic
remarks made by the High Court, against the government
pleaders and the Court staff clearly exhibits a departure
from the principles quoted above.
29. We are of the considered opinion that the judgment
of the High Court is unsustainable either in law or in
equity. Consequently, the appeals are allowed. The
impugned judgment of the High Court is set aside with
no order as to costs.
...................................J.
[B.Sudershan Reddy]
...................................J.
[Surinder Singh Nijjar]
New Delhi;
February 24, 2011.
2
