INDIAN OIL CORPORATION LTD. & ORS.versusSUBRATA BORAH CHOWLEK, ETC.

                   [2010) 13 (ADDL.) S.C.R. 776


A            INDIAN OIL CORPORATION LTD. & ORS.
                                  v.
               SUBRATA BORAH CHOWLEK, ETC.
              (Civil Appeal Nos. 9726-9727 of 2010)
                       NOVEMBER 12, 2010
B
               [D.K. JAIN AND T.S. THAKUR, JJ.]

        LIMITATION ACT, 1963:

c        s.5 - Condonation of delay in filing appeal by a public
  sector undertaking - Declined by High Court - Held: -
  Sufficient cause had been made out for condonation of delay
  in filing the appeal and, therefore, the High court erred in
  declining the prayer- It is true that even upon showing a
0 sufficient cause, a party is not entitled to the condonation of
  delay as a matter of right, yet it is trite that in construing
  sufficient cause, courts generally follow a liberal approach,
  particularly, when no negligence, inaction or ma/a fides can
  be imputed to the party - It is manifest that though s. 5
E envisages the explanation of delay to the satisfaction of the
  court, and makes no distinction between the State and the
  citizen, nonetheless, adoption of a strict standard of proof in
  case of the Government, which is dependent on the actions
  of its officials, who often do not have any personal interest in
  transactions, may lead to grave miscarriage of justice and,
F therefore, certain amount of latitude is permissible in such
  cases - In the instant cases, the conduct of the appellants
  does not indicate inaction, negligence or ma/a fides - The
  explanation furnished for the marginal delay of 59 days,
  constitutes a sufficient cause and, therefore, deserves to be
G accepted - The impugned judgement is set aside, and the
  matter remanded to Division Bench of High Court for
  consideration on merits - Government litigation - Delay in
  filing appeal.

H                               776
    INDIAN OIL CORPORATION LTD. & ORS. v.            777
       SUBRATA BORAH CHOWLEK, ETC.
     Shankuntal Devi vs. Kuntal Kumari & Ors.(1969) 1 SCR A
1006; The State of West Bengal Vs. The Administrator;
Howrah Municipality & Ors. 1972 ( 2 ) SCR 874 = (1972) 1
SCC 366; N. Balakrishnan Vs. M. Krishnamurthy 1998 (1)
Suppl. SCR 403 = (1998) 7 SCC 123 ; Sita/ Prasad Saxena
Vs. Union of India & Ors. 1985 ( 1 ) SCR 659 = (1985) 1 SCC B
163; ,Ram/al, Motilal & Chhotelal Vs. Rewa Co/afields
Ltd.(1962) 2 SCR 762; Ram Nath Alias Ram Nath Sahu &
Ors. Vs. Gobardhan Sao & Ors. 252002 ( 2 ) SCR 77 =(2002)
3 SCC 195, State (NCT of Delhi) Vs. Ahmed Jaan 2008 (12
) SCR 28 = (2008) 14 SCC 582; State of Nagai/and Vs. Lipk c
Ao & Ors. 2005 (3 ) SCR 108 = (2005) 3 SCC 752, Special
Tehsi/dar, Land Acquisition Kera/a Vs. K. V. Ayisumma 1996
( 3) Suppl. SCR 848 =(1996) 10 SCC 634; State of Haryana
Vs. Chanda Mani & Ors. 1996 ( 1 ) SCR 1060 = (1996) 3
sec 132 - relied on.                                        D
                   Case Law Reference:
    (1969) 1 SCR 1006           relied on      Para 7
    1972 ( 2 ) SCR 874          relied on      Para 7
                                                           E
    1998 ( 1 ) Suppl. SCR 403 relied on.       Para 7
    1985 ( 1 ) SCR 659          relied on      Para 7
    (1962) ·2 SCR 762          relied on       Para 8

    2002 ( 2 ) SCR 77          relied on       Para 9      F

    2008 (12 ) SCR 28          relied on       Para 10
    2005 (3 ) SCR 108          relied on       Para 10
    1996 ( 3 ) Suppl. SCR 848 relied on        Para 10     G
    1996 ( 1 ) SCR 1060        relied on       Para 10

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
9726-9727 of 2010.
                                                           H
    778    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A       Form the Judgment & Order dated 29.01.2010 of the High
    Court of Guwahati at Guwahati in Writ Appeal (Civil) No.
    Miscellaneous Case Nos. 2966 & 2967 of 2009.

      Goolam E. Vahanvati, A.G., V.N. Koura, Aruna Mathur,
8 Paramjeet   Beripal (for Arputham, Aruna & Co.) for the
  Appellants.

        P. Goswami, Rajiv Mehta, Biswanath Agrawalla for the
    Respondent.

c         The Order of the Court was delivered by

          D.K. JAIN, J. 1. Leave granted.

       2. The present appeals, by special leave, are directed
  against order and judgment dated 29th January, 2010 passed
D by a Division Bench of the Gauhati High Court, whereby
  appellants' application seeking condonation of delay of 59 days
  in preferring the appeal was rejected and their writ appeal was
  dismissed in limine as being barred by limitation.

E      3. The respondents herein filed writ petitions in the High
  Court seeking regularization of their services from the dates of
  their initial appointment with consequential benefits. A learned
  Single Judge of the High Court, vide his judgment dated 29th
  April 2009, allowed the writ petitions, and directed appellant
F No.2 viz. the Assam Oil Division of the Indian Oil Corporation
  to treat the respondents as having been regularly appointed
  from the date of their initial appointment, and to give them all
  the consequential service benefits.

       4. Being aggrieved by the said order, the appellants
G preferred an appeal before the Division Bench of the High
  Court on 29th July 2009, along with an application for
  condonation of delay in filing the appeal. It was pleaded that
  the delay of 59 days had occasioned because of the time taken
  by the company's consultant at Delhi, mainly on account of
H
    INDIAN OIL CORPORATION LTD. & ORS. v.                     779
 SUBRATA BORAH CHOWLEK, ETC. [D.K. JAIN, J.]
summer vacation.                                                      A

    5. As afore-mentioned, the Division Bench of the High
Court dismissed the appeal, on the ground of limitation,
observing thus:

     "As such, the averments made in the application do not           B
     disclose any weighty or convicting cause to construe the
     same as sufficient within the meaning of Section 5 of the
     Act. The applicant corporation had since the delivery of the
     judgment and order involved been cavalier and nonchalant
     in its approach. No urge or concern to act with expedition       C
     or dispatch in view of the period of limitation prescribed
     is discernible in its enterprise to decide the next course
     of action following the decision of the Single Judge. In the
     facts and circumstances of the case, we are of the
     unhesitant opinion that the applicants are not entitled to the   D
     equitable relief of condonation of delay, they having utterly
     failed to offer a sufficient cause therefore in filing the
     accompanying writ appeals."

     6. As stated above, the appellants had pleaded tlJat the
                                                                      E
delay in filing the appeal was unintentional and bona fief€(_ in as
much as on receiving an uncertified copy of the judgment, they
sought legal opinion from their local lawyer on 7th May 2009,
which was received by them on 21st May 2009. Thereafter, the
same was forwarded to the General Manager (HR), Refinery
Headquarters, New Delhi on 28th May 2009. Vide his letter             F
dated 6th June 2009, the said General Manager sought some
documents, including a certified copy of the judgment.
Subsequently, the General Manager forwarded the case file to
the company's legal advisors at New Delhi on 18th June 2009.
The said legal advisors gave their opinion on 7th July 2009,          G
advising the appellants to file an appeal against the judgment
of the Single Judge; the proposal was approved by the
headquarters of the appellants; whereafter the case file was
handed over to the counsel for preparing and filing the appeal,
which was ultimately filed on 29th July 2009.                         H
    780       SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A      7. Having heard the learned counsel, we are of the opinion
  that in the instant case a sufficient cause had been made out
  for condonation of delay in filing the appeal and therefore, the
  High Court erred in declining to condone the same. It is true
  that even upon showing a sufficient cause, a party is not entitled
s to the condonation of delay as a matter of right, yet it is trite
  that in construing sufficient cause, the Courts generally follow
  a liberal approach particularly when no negligence, inaction or
  ma/a fides can be imputed to the p ~rty. (See: Shakuntala Devi
  Jain Vs. Kuntal Kumari & Ors. 1; The State of West Bengal Vs.
C The Administrator, Howrah Municipality & Ors. 2; N.
  Balakrishnan Vs. M. Krishnamurthy 3; Sita/ Prasad Saxena
  Vs. Union of India & Ors. 4 )

            8. In Ram/al, Motilaf & Chhotelal Vs. Rewa Coalfields
    Ltd.   5 , this Court held that:

D
            "In construing Section 5 it is relevant to bear in mind two
            important considerations. The first consideration is that the
            expiration of the period of limitation prescribed for making
            an appeal gives rise to a right in favour of the decree-
E           holder to treat the decree as binding between the parties.
            In other words, when the period of limitation prescribed has
            expired the decree-holder has obtained a benefit under the
            law of limitation to treat the decree as beyond challenge,
            and this legal right which has accrued to the decree-holder
            by lapse of time should not be light-heartedly disturbed.
F
            The other consideration which cannot be ignored is that if
            sufficient cause for excusing delay is shown discretion is
            given to the court to condone delay and admit the appeal.
            This discretion has been deliberately conferred on the
            court in order that judicial power and discretion in that
G
    1.     (1969) 1 SCR 1006.
    2.     (1972) 1 sec 366.
    3.     (1998) 1 sec 123.
    4.     (1985) 1 sec 163.
H   5.     (1962) 2 SCR 762.
        INDIAN OIL CORPORATION LTD. & ORS. v.                    781
     SUBRATA BORAH CHOWLEK, ETC. [D.K. JAIN, J.]
       behalf should be exercised to advance substantial justice.       A
       As has been observed by the Madras High Court in
       Krishna v. Chathappan 6 "Section 5 gives the court a
       discretion which in respect of jurisdiction is to be exercised
       in the way in which judicial power and discretion ought to
       be exercised upon principles which are well understood;          B
       the words 'sufficient cause' receiving a liberal construction
       so as to advance substantial justice when no negligence
       nor inaction nor want of bona fide is imputable to the
       appellant."

    9. Similarly, in Ram Nath Sao Alias Ram Nath Sahu & C
Ors. Vs. Gobardhan Sao & Ors. 7 , this Court observed that:

       "But one thing is clear that the courts should not proceed
       with the tendency of finding fault with the cause shown and
       reject the petition by a slipshod order in over-jubilation of    D
       disposal drive. Acceptance of explanation furnished should
       be the rule and refusal, an exception, more so when no
       negligence or inaction or want of bona tides can be
       imputed to the defaulting party. On the other hand, while
       considering the matter the courts should not lose sight of       E
       the fact that by not taking steps within the time prescribed
       a valuable right has accrued to the other party which should
       not be lightly defeated by condoning delay in a routine-like
       manner. However, by taking a pedantic and hypertechnical
       view of the matter the explanation furnished should not be       F
       rejected when stakes are high and/or arguable points of
       facts and law are involved in the case, causing enormous
       loss and irreparable injury to the party against whom the
       lis terminates, either by default or inaction and defeating
       valuable right of such a party to have the decision on merit.    G
       While considering the matter, courts have to strike a
       balance between resultant effect of the order it is going to
       pass upon the parties either way."
6.    (1890) ILR 13 Mad 269.
7.    (2002) 3 sec 195,                                                 H
    782     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A      10. In State (NCT of Delhi) Vs. Ahmed Jaan 8 , while
  observing that although no special indulgence can be shown
  to the Government which, in similar circumstances is not shown
  to an individual suitor, one cannot but take a practical view of
  the working of the Government without being unduly indulgent
B to the slow motion of its wheels, highlighted the following
  observations of this Court in State of Nagaland Vs. Lipok Ao
  & Ors. 9 :

          "It is axiomatic that decisions are taken by officers/
          agencies proverbially at slow pace and encumbered
c         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 '3 common feature. Therefore, certain amount
D         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 a justice-oriented
E         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-
F         oriented process."(See also: Special Tehsildar, Land
          Acquisition, Kera/a Vs. K. V. Ayisumma 10 ; State of
          Haryana Vs. Chandra Mani & Ors. 11)

       11. It is manifest that though Section 5 of the Limitation
G Act, 1963 envisages the explanation of delay to the satisfaction
  of the Court, and makes no distinction between the State and
    8.   (2008) 14 sec 582.
    9.   c2005) 3 sec 752.
    10. (1996) 10 sec 634.
H   11. (1996) 3 sec 132.
                                                               ."
    INDIAN OIL CORPORATION LTD. & ORS. v.                   7f33
 SUBRATA BORAH CHOWLEK, ETC. [D.K. JAIN, J.]
the citizen, nonetheless adoption of a strict standard of proof     A
in case of the Government, which is dependant on the actions
of its officials, who often do not have any personal interest in
its transactions, may lead to grave miscarriage of justice and
therefore, certain amount of latitude is permissible in such
cases.                                                              B
     12. Examineu on the touch-stone of the afore-noted
observations, we are of the view that in the present case, the
conduct of the appellants does not indicate inaction, negligence
or ma/a fides. The explanation furnished for the marginal delay     C
of 59 days, in our opinion, constitutes a sufficient cause and
therefore, deserves to be accepted.

    13. For the foregoing reasons, the appeals are allowed;
the impugned judgment is set aside, and the matter is
remanded back to the Division Bench of the High Court for           D
consideration on merits. There shall be no order as to costs.

R.P.                                         Appeals allowed.