Patna High Court – Orders
The Principal Secretary vs Punam Kumari Sharma on 20 January, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.502 of 2018
======================================================
1. The Principal Secretary Road Construction Department, Government Of
Bihar, Patna
2. The Engineer in Chief Road Construction Department, Government Of
Bihar, Patna
3. The Superintending Engineer Road Construction Department, Muzaffarpur
4. The Executive Engineer Road Construction Department, Muzaffarpur
... ... Appellant/s
Versus
1. Punam Kumari Sharma W/o Late Nageshwar Thakur Vill.- Balua, P.O.-
Dumra, p.s.- Runnisaidpur, Distt.- Sitamarhi, Present Address C/o
Radheshyam Thakur, Mohalla- Sahu Road, Near Deepak Cinema, Distt.-
Muzaffarpur
2. The State of Bihar through District Collector, Muzaffapur
3. The Circle Officer, Kanti, Muzaffarpur
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. P.K. Shahi, Advocate General
Mr. S.D. Yadav, AAG-9
Mr. Dinesh Maharaj, AC to AAG-11
Mr. Jitendra Kumar, AC to Ex-AAG-11
For the Respondent No. 1 : Mr. Aditya Shankar Pd., Adv.
Mr. Sanchay Srivastava, Adv.
Mr. Sushant Srivastava, Adv.
Mr. Ashish Kumar Palit, Adv.
For the Intervenor : Mr. Upendra Kumar Chaubey, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
26 20-01-2025
Re: I.A. No. 46 of 2019
This interlocutory application has been filed for
condoning the delay of 5 years and 6 months in filing the memo
of appeal.
2. This Second Appeal has been filed against
judgment and decree dated 09.02.2012 and 16.04.2013 passed in
Title Appeal No. 23 of 2012 by Ad hoc Additional District
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Judge-V, Muzaffarpur, whereby the judgment and decree passed
in Title Suit No. 632 of 2008 by Sub Judge-IV, Muzaffarpur has
been affirmed against defendant nos. 1 and 2/respondent nos. 2
and 3 along with a petition seeking leave to file Second Appeal
against the impugned judgment and decree. However, the
appellants were not party to the suit. The said application for
seeking leave to file Second Appeal has been allowed vide order
dated 11.05.2023.
3. Heard Mr. P.K. Shahi, learned Advocate General
assisted by Mr. S.D. Yadav, learned AAG-9, appearing on behalf
of the appellants and Mr. Aditya Shankar Prasad, learned
counsel for the respondent no. 1 appearing on behalf of the
respondent no. 1.
4. Learned senior counsel for the appellants submits
that the aforesaid suit was filed against the State of Bihar
through the District Collector, Muzaffarpur and Circle Officer,
Kanti, Muzaffarpur while property in question belongs to the
appellants (Road Construction Department, Government of
Bihar) and they were not made party in the suit and they were
necessary party in the subject matter and their rights have been
per-judicially and adversely affected. Hence, the appellants filed
this appeal against the impugned judgments and decree passed
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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by the lower court below. It is submitted that the appellants were
unaware with regard to any such proceeding and suddenly the
officials of the Execution Court came for the execution of the
decree passed in Title Suit No. 632 of 2008 and then they could
learnt about the same. The Execution Case No. 05 of 2014 has
been filed by the decree holder for execution of impugned
judgment and decree passed against the State of Bihar through
District Collector, Muzaffarpur, Circle Officer, Kanti and
Executive Engineer, Mechanical Division, Road Construction
Department, Muzaffarpur although Executive Engineer
Mechanical Division Road Construction Department,
Muzaffarpur was not party to the suit or appeal. After Admission
of Execution Case, the notices were issued to the respondents
including the appellant no. 4. The learned Execution Court
accepted the services of notice after passing of 30 days of the
notice against respondent nos. 2 and 3 as well as appellant no. 4.
It is further contended that from Column-10 of the aforesaid
Execution petition, it is apparent that the Execution of decree
has been sought for against the Executive Engineer, Mechanical
Division, Road Construction Department, Muzaffarpur and the
District Collector, Muzaffarpur.
5. Learned senior counsel further submitted that a
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notice dated 14.06.2018 was issued by the Office-
Incharge/Nazir, Civil Court Muzaffarpur. The said notice was
received in the office of Executive Engineer Mechanical,
Muzaffarpur vide Letter No. 373 dated 14/15.06.2018 whereby
direction was issued to vacate the land, in question, as the land
in question belongs to the appellants and hence, the aforesaid
letter was forwarded by Executive Engineer, Mechanical
through its Letter No. 150 dated 17.09.2018. It is further
submitted that the appellants first time learnt about the
impugned judgment and decree, thereafter, the appellant no. 4
consulted with the Advocate, who prepared grounds of appeal
and submitted before the authority concerned for its approval.
The grounds of appeal were approved and returned to the
appellant no. 4 on 19.11.2018 with authorization to assail the
impugned judgments and decree by filing Second Appeal in the
instant matter. Soon thereafter memo of appeal has been filed on
27.11.2018. Learned senior counsel for the appellants further
raised serious objection with regard to execution of decree. It is
submitted that the decree passed in the aforesaid suit is not
executable since the reliefs sought for declaration of right, title
and interest over the suit property and confirmation of
possession and also to declare that the suit property was
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wrongly and illegally recorded in the name of State of Bihar in
the Revisional Survey Khatiyan by the Survey Authority. It is
apparent from the relief that no prayer for recovery of
possession has been claimed.
6. On the other hand, learned counsel for the
respondent no. 1 vehemently submitted that the appellants were
having knowledge of the passing of the judgment and decree
dated 09.02.2012. The aforesaid suit was filed against the State
of Bihar and another and the present appellant no. 1 is Principal
Secretary, Road Construction Department, Government of
Bihar, which is nothing but an instrumentality of the State of
Bihar within the meaning of Article 12 of the Constitution of
India. The Road Construction Department is the department of
Government of Bihar which over sees construction of roads and
other works entrusted to it whereas the Collector of the District
is over all in-charge of all the departments under the State
Government. It is further submitted that defendant no. 1 and (the
State of Bihar) was a party in the suit and also in the appeal i.e.
Title Appeal which was filed through the Collector, Muzaffarpur
and Circle Officer, Kanti and the same was well within the
knowledge of the appellants.
7. The present appeal has been filed much beyond the
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prescribed period of 90 days and there is inordinate delay of
about more than 5 years 6 months. The appellants have no
sufficient cause to explain the delay. Reliance has been placed in
the case of Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi
& Ors. reported in 2021 SCC Online SC 1260 wherein the Apex
Court has held that “even though limitation may harshly affect
the rights of a party, it has to be applied with all its rigour when
prescribed by statute.” A reference has also been made to the
decision of Hon’ble Supreme Court in Ajay Dabra Vs. Pyare
Ram reported in 2023 SCC Online SC 92 wherein it has been
held as follows:-
“13. This Court in the case of Basawaraj vs. Special
Land Acquisition Officer [(2013) 14 SCC 81] while rejecting an
application for condonation of delay for lack of sufficient cause
has concluded in Paragraph 15 as follows: –
“15. The law on the issue can be
summarized to the effect that where a case has
been presented in the court beyond limitation, the
applicant has to explain the court as to what was
the “sufficient cause” which means an adequate
and enough reason which prevented him to
approach the court within limitation. In case a
party is found to be negligent, or for want of bona
fide on his part in the facts and circumstances of
the case, or found to have not acted diligently or
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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ground to condone the delay. No court could be
justified in condoning such an inordinate delay by
imposing any condition whatsoever. The
application is to be decided only within the
parameters laid down by this Court in regard to
the condonation of delay. In case there was no
sufficient cause to prevent a litigant to approach
the court on time condoning the delay without any
justification, putting any condition whatsoever,
amounts to passing an order in violation of the
statutory provisions and it tantamount to showing
utter disregard to the legislature.”
Thus, it is crystal clear that the
discretion to condone the delay has to be exercised
judiciously based on facts and circumstances of
each case and that, the expression ‘sufficient cause’
cannot be liberally interpreted, if negligence,
inaction or lack of bona fides is attributed to the
party.
8. Learned counsel for the respondent submits that
delay may not be excused as a matter of generosity and
rendering substantial justice is not to cause prejudice to other
side. In the present case sufficient cause has not been shown for
condoning the delay. The delay is liable to be condoned merely
because some persons have been granted relief on the facts of
their own case.
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9. Learned counsel for the respondent further submits
that the Hon’ble Supreme Court has laid down the law to test
whether inordinate delay in filing the proposed appeal ought to
be condoned or not. The Reliance has been placed in the case of
Pathapati Subba Reddy (Died) By L.Rs. & Ors. Vs. The
Special Deputy Collector (LA) decided on 08.04.2024 wherein
in paragraph no. 26, the Apex Court has held that “On a
harmonious consideration of the provision of law and the law
laid down by this Court, it is evident that:-
(i). Law of limitation is based upon public policy
that there should be an end to litigation by
forfeiting the right to remedy rather than the right
itself;
(ii). A right or the remedy that has not been
exercised or availed of for a long time must come
to an end or cease to exist after a fixed period of
time;
(iii). The provisions of the Limitation Act have to
be construed differently, such as Section 3 has to
be construed in a strict sense whereas Section 5
has to be construed liberally;
(iv). In order to advance substantial justice, though
liberal approach, justice-oriented approach or
cause of substantial justice may be kept in mind but
the same cannot be used to defeat the substantial
law of limitation contained in Section 3 of the
Limitation Act;
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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(v). Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is
discretionary in nature and may not be exercised
even if sufficient cause is established for various
factors such as, where there is inordinate delay,
negligence and want of due diligence;
(vi). Merely some persons obtained relief in similar
matter, it does not mean that others are also
entitled to the same benefit if the court is not
satisfied with the cause shown for the delay in
filing the appeal;
(vii). Merits of the case are not required to be
considered in condoning the delay; and
(viii). Delay condonation application has to be
decided on the parameters laid down for
condoning the delay and condoning the delay for
the reason that the conditions have been imposed,
tantamounts to disregarding the statutory
provision.”
10. The submission of the counsel for the
plaintiff/respondent is that if the negligence can be attributed to
the appellants, then necessarily the delay shall not be condoned.
“The real test for the sound exercise of discretion by the High
Court in this regard is not the physical running of time as such
but the test is whether by reason of delay, there is such
negligence on the part of the appellant so as to infer that he has
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court, the rights of third party have come into being which
should not be allowed to be disturbed unless there is reasonable
explanation for the delay.” This view has been taken in the case
of Municipal Council Ahmed Nagar & anr. Vs. Shah Haidar
Beg & Ors. reported in 2000 (2) SCC 48.
11. It is further submitted that when the State of Bihar
was itself a party to a proceeding and it loses the matter on merit
and it is established that the State of Bihar has no concern
whatsoever when the land in question as well as the entry in
Revisional Survey Khatiyan in the name of State of Bihar itself
was a wrong entry then how occasion arises for one Department
of the State of Bihar to approach this Court. The appellant has
miserably failed to sufficiently explain the reason for causing of
the said inordinate delay, therefore, the delay cannot be
condoned in the present appeal.
12. Considering the submissions made by the learned
counsels appearing for the parties as well as upon careful and
anxious consideration to the rival contentions raised at the Bar,
it is necessary to consider the knowledge of the appellants with
regard to the suit and its judgment.
13. It is admitted fact that appellant was neither made
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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party in the suit nor in appeal. The instant suit was filed for
declaration of plaintiff’s right, title and interest over the
Schedule-I land and confirmation of possession over Schedule-I
land and also to declare that the State of Bihar has got no
concern with the disputed land and as such Revisional Survey
entry is wrong. It is made clear that the aforesaid suit was filed
by the plaintiff/respondent no. 1 against the State of Bihar
through District Collector, Muzaffarpur and Circle Officer,
Kanti, Muzaffarpur. The suit was decreed. Being aggrieved by
the aforesaid judgment and decree, the State of Bihar through
District Collector and Circle Officer, Kanti filed Title Appeal
No. 23 of 2012. During the pendency of appeal, the
plaintiff/respondent filed an application for amendment in the
relief no. (i) of the plaint “as or in alternative deliver the
possession by the process of the court” which was allowed by
the lower appellate court on 27.02.2013 and accordingly plaint
was amended. Thereafter, the plaintiffs filed the Execution Case
bearing Title Execution Case No. 05 of 2014 before Sub Judge-
IV, Muzaffarpur, not only against defendant nos. 1 and 2 but
also against Executive Engineer, Mechanical Division, Road
Construction Department (appellant no. 4). Later on, it was
transferred to the court of Sub Judge-II, West, Muzaffarpur. As
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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per the case of the plaintiff/respondent, the delivery of the
possession was effected on 18.11.2018 and delivery of
possession report of Nazir was perused by the learned Sub
Judge-II, West, Muzaffarpur on 24.11.2018. Later on, the
delivery of possession was confirmed by order dated
03.10.2019. However, the appellants received the notice issued
by the Office-In-charge, Nazir, Civil Court, Muzaffarpur by the
Office of Executive Engineer Mechanical Division vide Letter
No. 373 dated 14/15.06.2018 whereby the request was made to
vacate the land in question till 29.06.2018 after preparation of
inventory of the articles so that delivery of possession of the suit
land can be handed over to the plaintiff decree holder. It is
admitted case of the decree holder-respondent that the Road
Construction Department is in possession of the land in
question. The Road Constitution Department has not been made
party to the suit. From perusal of the order sheet of Execution
Case No. 05 of 2014, it appears that the notices issued in
execution proceeding against defendant nos. 1 and 2 and
appellant no. 4 also were treated as valid service after lapse of
30 days vide order dated 06.11.2015. It is also apparent from the
order sheet of Title Execution Case No. 05 of 2014 that there is
no service report with regard to notices issued in the aforesaid
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execution proceeding. It is case of the appellants that they
received notices issued by Office-In-charge, Nazir vide Letter
No. 373 dated 04/2018 / 06/2018 and Letter No. 150 dated
17.09.2018 then they learnt about the impugned judgment and
decree. Thereafter, the pairvikar of the appellants filed
requisition for certified copy of judgment and decree which was
obtained and the appellant no. 4 consulted with Advocate and
filed the present memo of appeal on 27.11.2018 along with the
limitation petition after its approval by the authorities
concerned.
14. Considering the aforesaid facts and submissions
made by the parties, for condonation of delay, the discretion has
been deliberately confirmed on the court in order that judicial
power and discretion in that behalf should be exercised to
advance substantial justice. Sufficient cause for not making the
application within the period of limitation should be understood
and applied in a reasonable, pragmatic, practical and liberal
manner depending upon the facts and circumstances of the case
and the nature of case. The word “sufficient cause” in Section 5
of the limitation Act should receive a liberal construction so as
to advance substantial justice, when the delay is not on account
of any deliberate tactics, want of bona fides, deliberate in action
Patna High Court SA No.502 of 2018(26) dt.20-01-2025
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or negligence on the part of the appellants.
15. In view of the prayer in the suit, it is apparent
from the record that the declaration of title and confirmation of
possession had been sought originally. Later on, in appellate
stage in 2013, alternative prayer was made for recovery of
possession through process of court which was allowed by the
appellate court. Even the plaintiff/respondent did not make a
prayer against the occupier of the land in question i.e. appellant
no. 4. The appellants are in possession of the suit property and
their interest is involved and the plaintiff has not chosen to make
the appellants as party in the suit or appeal. There is no material
on record to suggest that appellants had knowledge of the suit or
the appeal.
16. In the aforesaid facts and averments made, the
appellants have given sufficient cause for condonation of delay.
As per dictum laid down in the case of Balakrishnan Vs. M.
Krishnamurthy reported in 1998 (7) SCC 123 it has been 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
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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. Once the court
accepts the explanation as sufficient it is the result
of positive exercise of discretion and normally the
superior court should not disturb such finding,
much less in reversional jurisdiction, unless the
exercise of discretion was on whole untenable
grounds or arbitrary or perverse. But it is a
different matter when the first court refuses to
condone the delay. In such cases, the superior
court would be free to consider the cause shown
for the delay afresh and it is open to such superior
court to come to its own finding even untrammeled
by the conclusion of the lower court.”
17. In the above dictum, it is specifically mentioned
that once a court accepts the explanation as sufficient, it is result
of positive exercise of discretion.
18. In view of the discussions made hereinabove, the
delay in filing the memo of appeal is hereby condoned.
19. Accordingly, I.A. No. 46 of 2019 is allowed.
(Khatim Reza, J)
prabhat/-
U
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