Factors to be considered by court while considering application for delay condonation by public body

Again as stated in the case of Collector, Anantnag (AIR 1987 SC 1353) the power to condone delay has been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits and, as held in the case of G. Rame-gowda -- "In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost by such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. ..... .a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. Therefore in assessing what, in a particular case, constitutes 'sufficient cause', it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict these factors which are peculiar to and characteristic of the functioning of the Government." That answers the second issue referred to us for our consideration and it has to be held that, while considering an application for consideration of delay by a public body; the merits of the main matter should also be considered as a predominant factor.

 For the reasons stated above, I beg to differ with my brothers, M. B. Shah, J. and Y. B. Bhatt, J. and answer the two issues framed in paragraph 4 of this judgment as follows:--

(a) Small delays in the filing of appeals and applications by public bodies should be generally condoned.

(b) While considering an application for condonation of delay filed by a public body, the merits of the main matter should also be considered as a predominant factor.

Gujarat High Court

Municipal Corporation Of ... vs Voltas Limited And Etc. Etc. on 6 May, 1994

Equivalent citations: AIR 1995 Guj 29, (1994) 2 GLR 1325

Bench: M Shah, Y Bhatt, H Gokhale

1. This group of Civil Applications has been referred to this Bench by a Division Bench (Coram: R.A. Mehta and R.D. Yyas JJ.) by its order dated 21st July 1992. Although the order of reference does not specifically set out the question(s) required to be considered by this Bench, it appears that the reference has been made since the referring Bench did not agree with the orders passed by some other Benches refusing to condone the delay, including orders passed by a Division Bench of C.V. Jani and R.K. Abichandani JJ. in Civil Application Nos. 587/90 dtd. 24-6-92, in Civil Application No. 539/90 (and the Group) dated 25-6-92 and in Civil Application No. 716/90 (and the Group) dated 26-6-1992.

2. We have been taken through the earlier orders passed by the Bench of C.V. Jani and R.K. Abichandani JJ. and from a perusal of the same it appears to us that the same are orders or decisions based on the facts and merits of those cases. It does not appear to us that the rejection of those applications was based on any principle of law. However, since these matters have been placed before us, we shall examine the same in the light of the observations made in the earlier decisions (unacceptable to the referring Bench) and on the basis of the contentions taken and submissions made before us by the learned counsel for the respective parties.

2.1 We may note here that the decisions found unacceptable by the referring Bench specifically deal with and reject the contention of the applicants to the effect that the merits of the substantive matter should be the only criterion for deciding the sufficiency of the cause for delay, even if the delay is not satisfactorily explained.

3. The questions which arise before us arise from the question of condonation of delay in filing the substantive matter, and how and on what legal principles the application for condonation of delay should be dealt with.

4. The questions raised for our consideration on the basis aforesaid can be broadly stated as under :

(i) Whether the question of condonation of delay, and in this context, "sufficient cause", is a question of fact or a question of principle?

(ii) Whether the professed cause for the delay being "administrative delay/administrative reasons/administrative procedure", is in itself a question of principle, irrespective of the facts involved, and / or whether the plea that there was delay on account of "administrative delay/ administrative reasons/ administrative procedure" is in itsell "sufficient cause" for condonation of delay?

(iii) Whether the merits of the substantive matter, in respect of which condonation of delay is sought, is the only criterion to decide the sufficiency of the cause, and/or whether it is a predominant factor or merely a relevant factor.

5. Learned counsel for the applicants in these group of matters has taken us through a number of relevant decisions of various courts. Firstly, reliance has been placed upon a decision of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji, reported at AIR 1987 SC 1353. Learned counsel for the applicants, after discussing the said decision, laid particular emphasis on the six factors recited in para 3 of the said decision. These six factors are as under :

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that the cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and techinical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occassioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalise on technical grounds but because it is capable of removing injustice and is expected to do so."

5.1. In the context of the said factors, learned counsel for applicants relied heavily upon the factors at item Nos. 2 and 4. In this context he submitted that if the Court refuses to condone delay in a matter which is meritorious in substance, the matter would be thrown out at the very threshold and this would result in injustice. He further submitted that factor No. 4 supports his contention that the ordained function of a Court being to render substantial justice, the cause of substantial justice must be preferred and cannot be overshadowed or negatived by technical considerations such as the bar of limitation.

5.2. In the context of the submissions made by the learned counsel for the applicants, we are bound to observe that these six factors have been enumerated in the said decision of the Supreme Court for a limited and specific purpose. These factors have not been enumerated, in our opinion, with a view to furnishing any particular guidelines as to how an application for condonation of delay should be decided on merits. When these factors are considered in the context of the observations made in para 3 of the said decision, the reason for enumerating these factors becomes amply clear. In fact, the sentence which enumerates these six factors begins with "And such a liberal approach is adopted on principle as it is realised that;". Thus, in our opinion, that the Supreme Court has stated on principle or laid down by way of the ratio is not that these six factors are required to be individually considered and evaluated in the context of the facts of a particular application for condonation of delay. The only principle laid down in the said decision is that, on account of these factors, a liberal approach is required to be adopted by a Court in deciding an application for condonation of delay. This decision does not, in our opinion, in any manner deal with what facts should or should not constitute "sufficient cause" on the facts of case. Obviously, the sufficiency of the cause for condonation of delay must necessarily depend upon the facts of each case.

5.3. We must not lose focus on the relevancy of these six factors. Having persued this decision carefully, we are unable to locate therefrom any principle laid down to the effect that these six factors (whether considered individually, collectively or in combination with other facts) when factually established in a given case for condonation of delay, would by itself constitute "sufficient cause" for condonation. Thus, the Court when examining the facts that supposedly constitute "sufficient cause" for condonation, is not required to focus its attention on any of these six factors, but is only required to keep in mind that it is on the basis of these factors that a liberal view should be taken, so far as the intepretation of the facts is concerned. This is so because the only relevancy of these six factors which we can ascertain from the said decision is that the existence of these factors in the abstract, which fall within the realm of rcaliies of life, (and not on the facts of a given case), constitute the basis upon which the decision lays down the ratio viz. that the Court should normally take a liberal view when appreciating those facts, which supposedly constitute "sufficient cause" for condonation of delay.

5.3.1. In this decision the Supreme Court considered whether or not to apply the same standard in applying the "sufficient cause" test to all the litigants regardless of their personality character or capacity. In this case, a delay of 4 days in filing the appeal was not condoned and the application was rejected. The Court observed that the Legislature has Conferred a power on the Courts to condone delay (by enacting Section 5 of the Limitation Act) in order to enable the Courts to do substantial justice to parties by disposing of the matter on merits. It further observed that the expression "sufficient cause" employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserve the ends of justice and such liberal approach is adopted on the principles stated therein (we have incorporated the said principles in the beginning of the judgment). This would clearly mean that the six factors narrated above are the reasons why the facts constituting "sufficient cause" should be liberally interpreted so that substantial justice is done to the parties. The Supreme Court further observed that the doctrine of equality before law demands that all litigants including the State as a litigant are accorded the same treatment and the law is administered in an even-handed manner. Nowhere does this decision even suggest that, for the State Government or the local authorities to state "for some unknown administrative reasons there was delay in filing the appeal" would constitute "sufficient cause". If the contention of the learned counsel for the Municipal Corporation is accepted, it would simply mean that in all cases, the Court should accept that in the Government or semi-government or local self government agencies, nobody is personally involved or interested in the decision-making process, the Court should condone the delay, even where specific facts are not brought on record to justify the sufficiency of the cause. Such an approach would result in applying different standards in favour of such bodies. This, in our view, would be discriminatory. On the contrary, in the aforesaid case, it is specifically observed: "The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants including the State as a litigant are accorded the same treatment and the law is administered in even-handed manner".

5.4. It would also be relevant to examine the provisions pertaining to condonation of delay viz.Section 5 of the Limitation Act, 1963. Section 5 reads as under :

"5. Extension' of prescribed period in certain -- Any appeal or application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

A plain reading of this provision indicates that firstly this is an enabling provision and nothing more. It enables a Court to condone the delay, subject to the Court being satisfied that there was "sufficient cause" for the delay. The Court can only examine the submissions of the parties on the basis of the facts averred and made out in the application for condonation. The Court cannot decide the sufficiency of the cause de hors the facts pleaded and made out. Whether the cause shown was sufficient or otherwise, cannot be converted into a question of principle, as attempted by the learned counsel for the applicant, on the basis of the decision in the case of Collector, Land Acqusition, Anantnag (AIR 1987 SC 1353) (supra). Thus, we have no hesitation in coming to the conclusion that the phrase "sufficient cause" involves only questions of fact to be considered by the Court dealing with the application for condonation of delay, and in considering the sufficiency of the cause, no question of principle is involved, I except that a liberal view should be adopted in the examination and interpretation of the facts which seek to establish. "sufficient cause", as laid down in the case of Collector, Land Acquisition, Anantnag (supra).

6. This takes us to the next contention raised by learned counsel for the applicants viz. that the cause referred to variously as "administrative delay/administrative reasons/ administrative procedure" is itself a sufficient cause, irrespective of the facts of the case, on the premise's that the same is a question of principle. This submission on the part of the learned counsel for the applicants is misconceived inasmuch as, when the delay is sought to be condoned for the cause or causes referred to as "administrative delay/administrative reasons/administrative procedure", this is merely a reason set out for condonation of delay. Moreover, we cannot ignore the fact that setting out such a reason is merely in the nature of a plea or an averment, and this can only be made good by establishing the same on the basis of the appropriate facts brought on record, which would assist the applicant in satisfying the Court as regards sufficiency of the cause. When an applicant sets out that the delay was on account of "administrative reasons", etc., it is certainly a cause for the delay i.e. it is the reason behind the delay. This by itself does not necessarily make it a "sufficient cause" within the meaning of the provision. The submission of the learned counsel for the applicants in this context clearly, ignore the word "sufficient" which occurs within the phrase "sufficient cause". Thus, it is obvious that what may be a reason or the reason for the delay, may not be a good reason i.e. may not be "sufficient" reason for condoning the delay. In other words, the sufficiency of the reason for condoning the delay must necessarily be established from the facts, both averred and established, and such facts would necessarily differ from case to case. Clearly, therefore, merely pleading or even aserting that the cause for delay was "administrative delay administrative reasons/ administrative procedure" would not establish the sufficiency of the cause. Necessarily, therefore, the Court considering the application for condonation of delay is required to go into the facts of the case i.e. the facts of the particular application, and determine on the basis of those facts alone as to whether the cause is sufficient or otherwise, for condoning the delay.

6.1. At time juncture we may also take note of the contention raised by the learned counsel for the opponents to the effect that on a true and correct interpretation of the provisions of Section 5of the Limitation Act, the mandate of the section for the purposes of condonation of delay is only that a "sufficient cause" be made out for obtaining condonation. For making out the "sufficient cause" a factual foundation is essential, and that therefore, the question of sufficiency of the cause cannot be decided on abstract principles and dehors the facts of the case which constitute the reasons for the delay. We are inclined to uphold this submission.

6.2. In this context, the observations of the Supreme Court in the case of Binod Bihari Singh v. Union of India, reported at AIR 1993 SC 1245 are relevant. The observations made in para 10 of the said decision are of far-reaching effect. Their Lordships of the Supreme Court observed that they were not inclined to hold that the delay in presenting the application (the substantive matter) deserves to be condoned on the facts and circumstances of the case. They further observed that in their view it is not at all a fit case where in the anxiety to render justice to a party so that _a just cause is not defeated, a pragmatic view should be taken by the Court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act . The contention, that the ignoble plea of bar of limitation sought to be raised by the respondent should not be taken into consideration in order that the just claim of the appellant should not be defeated, was emphatically negatived. Their Lordships further went on to observe, merely by way of an indication, that it may not be desirable for a Government or a public authority to take shelter under the plea of bar of limitation to defeat a just claim of a citizen; but if a claim is barred by limitation and such plea is raised specifically, the Court cannot straightway dismiss the plea simply on the score that such a plea is ignoble. A bar of limitation may be considered even if such plea has not been specifically raised. The principles that the Limitation Act is a statute of repose and a bar to a cause of action in a Court of law which is otherwise lawful and valid, because of undesirable lapse of time as contained in the Limitation Act, has been laid down on well accepted principles of jurisprudence and public policy. Thus, these observations clearly have relevance on two aspects of the present matter. Firstly, that the bar of limitation creates a right in favour of the party which successfully sets up such a bar, and secondly that the extinguishment of the remedy which is otherwise available to a party under law, is enforced on the basis of well accepted principles of jurisprudence and public policy. This decision also establishes yet another principles viz. that where a just cause is to be weighed against shutting out the same on account of the bar of limitation, the latter must prevail. Even a just cause cannot prevail over the bar of limitation.

6.3 We may also refer to the ratio laid down by the Supreme Court in the case of Sandhya Rani v. Subha Rani, reported at AIR 1978 SC 537. The ratio laid down in the said decision, in our view is not much different from the ratio laid down in the case of Collector, Land Acquisition, Anantnag, reported at AIR 1987 SC 1353; but we note that it goes little further than the observations made in the latter case. Para 8 of the said decision discusses the scope of Section 5 in general and then goes on to observe that the party which seeks condonation has to satisfy the Court that he had "sufficient cause" for not preferring the appeal or making the application within the prescribed time. However, it is not possible to lay down precisely as to what cause or matters would constitute "sufficient cause". All that their Lordships held is that those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party. One cannot read into this decision the converse principle, sought to be propagated by the counsel for the applicants. We cannot, therefore, agree with the submission that where the opponent in an application for condonation fails to establish negligence, inaction or want of bona fides on the part of the party seeking condonation, such an application must be granted. In view of a plain reading of Section 5 of the Limitation Act, although there is no specific onus or burden of proof contemplated by the provision, it is implicit that it is the applicant who has to satisfy the Court as regards the sufficiency of the cause. As already observed in various decisions referred to by us, the sufficiency of the cause for condonation is always a question of fact and must necessarily differ from case to case.

7. The next contention raised by the learned counsel for the applicant is to the effect that the merits of the substantive matter, in respect of which the delay is sought to be condoned, must be examined, and where it is found that the substantive matter is good on merits, any and all delay in filing the substantive matter must be condoned, even if the delay is not satisfactorily explained. In substance, therefore, the contention is to the effect that the merits of the substantive matter is the sole criterion, or at the very least a predominant factor, to be borne in mind by the Court while considering the application for condoning delay. To our mind, this submission puts the cart before the horse. The substanlive matter in respect of which delay is sought to be condoned has no existence in law, so far as the Court is concerned, until the delay is condoned. In fact, until the delay is condoned the Court cannot take cognizance of the merits or otherwise of the substantive matter. In this limited context, the application for condonation of delay create a jurisdictional barrier against the consideration of the substantive matter on merits.

7.1 In this context our attention has been drawn to a decision of the Supreme Court in the case ofState of Gujarat v. Sayed Mohd. Baquir El. Edroos, reported at AIR 1981 SC 1921. The contention similar to the present intention was advanced before the Supreme Court, which has been dealt, with in para 3 of the said decision. This contention was summarily rejected on the principle that the abatement stands in the way of the appeal being heard on merits, which cannot, therefore, be looked into. Thus, the Court while considering the question of condonation of delay on merits, is barred from looking into the merits of the substantive matter, in the filing of which condonation is sought. In this context we may also observe that no decision of the Supreme Court has been pointed out to us wherein this decision has been dissented from. We are, therefore, obliged to hold that the merits of the substantive matter had no relevance whatsoever when the Court is dealing with the application for condonation of delay.

7.2. Reliance was sought to be placed upon a decision of the Supreme Court in the case of Ram Bhawan Singh v. Jagdish, reported at Judgment Today (1990) 3 JT (SC) 704. In our opinion, this decision does not in any manner advance the cause of the applicants inasmuch as the same is a decision entirely on the facts of the case, which is obvious from para 7 of the said decision. The Supreme Court dealt with the question of limitation, and the contention as regards delay, entirely on the facts of the case. On a consideration of the relevant facts, the Supreme Court came to the conclusion that there was no merit in the grounds urged by the appellants (of that case) for getting over the bar of limitation.

7.3. Reliance was also sought to be placed on a decision of the Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat, reported at (1981) 22 Guj L.R 268. We are afraid that even this decision does not advance the case of the applicant inasmuch as the same does not lay down any principle which is relevant or pertinent to the questions which are before us for consideration. The only principle laid down in the said decision is that the sufficiency of the cause for condonation of delay must relate to some events or circumstances arising or existing before the period of limitation expires, and that no event or circumstances arising after the expiry of limitation can constitute a "sufficient cause"

which would justify condonation of delay.

This principle has no bearing on the controversy before us.

8. The conclusion drawn by us herein-above is further supported by another decision of the Supreme Court in the case of G. Ramagowda v. Special Land Acquisition Officer, Bangalore, reported at AIR 1988 SC 897. In paragraph 7 of this decision, their Lordships have observed that there is no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona-fides 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. However, each case will have to be considered on the peculiarity of its own special facts. However, the expression "sufficient cause" in Section 5 of the Act must receive a liberal construction so as to advance substantial justice. In para 8 of the said decision their Lordships have considered why delays are caused in Government matters and has also taken into consideration the complexities involved. Nevertheless, their Lordship have observed to the effect that a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it . These observations, no doubt, establish that although the Government as a litigant stands at part with any other private citizen, its problems are peculiar. Nevertheless, the peculiarity of these problems assumes significance only where "public interest" was shown to have suffered "owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it". However, these observations have no direct bearing on the issues before us inasmuch as, in none of the matters before us, was it shown that such a plea had been raised on the part of the applicants.

8.1. This decision, however, goes on to observe as under (at p. 901 of AIR) :

"Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes ofSection 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, those factors which are peculiar to and characteristic of the functioning of the Government. ........ A certain amount of latitude is, therefore, not impermissible .......... Due recognition of these limitations on Governmental functioning -- of course, within a reasonable limit -- is necessary if the judicial approach is not rendered unrealistic". The Supreme Court in this case criticised the conduct of the Government by observing that it was perilously close to such inaction as might, perhaps, have justified rejection of its prayer for condonation. But us the High Court had condoned the delay in the interest of keeping the stream of justice pure and clean, the Supreme Court declined to interfere.

9. Reliance was sought to be placed on a decision of the learned single Judge of this Court (C. K. Thakkar, J.) in the case of Municipal Corporation of Admedabad v. Manish Enterprises, reported at 3(2) Guj LR 1252 : (AIR l993 Gujarat 145). This decision constitutes a detailed and erudite analysis of the case law on the subject of condonation of delay. The ratio laid down in the said decision, inter alia, is to the effect that Goverment deparments and local authorities cannot claim any privilege in regard to condonation of delay and they must be treated at par with private individuals, and the delay can be condoned only if sufficient cause is shown. This decision also analyses in detail the ratio laid down in the case of Collector, Land Acquisition, Anantnag(AIR 1987 SC 1353) (supra) and after a detailed analysis comes to the same conclusion arrived at by us hereinabove. However, the present decision does not cast any light on the controversy presently before us.

10. In the context of the above discussion we must also take note of a decision of the Allahabad High Court in the case of State of U.P. v. Phota, reported at AIR 1991 Allahabad'229. This decision takes into consideration, discusses and explains the decisions of the Supreme Court in the case of G. Rame-gowda, AIR 1988 SC 897 (supra). The observations made in para 16 of the said decision are pertinent for bur present purposes : The law of limitation is intended to provide some sort of discipline in proceedings before the Court. The very fact that this law prescribes certain fixed periods for doing certain things itself means that the legislative intention is to enforce discipline in Court affairs which cannot be left to the personal whims of a person or to his convenience. Certain discipline is, therefore, inherent in the every concept of the law of limitation and this can offer no ground for grudge to any one, much less, the State. If State actions arc weighed by cumpersome bueraucratic procedures, private individual also may sutler from paucity of hands and funds. If law expects a person to leave his business, cultivation or service alone in order to approach the Courts in time, why cannot the State, with its large work force and immense resources, be expected to do so? All that is required is a properly coordinated action. If sufficient time-bound guidelines are laid down, this work can be accomplished within time. The problem only is that more the Courts become liberal, the more the Government becomes complacent., This must stop and the Courts will have to take notice of this casualness which is creeping into the functioning of the, Government, particularly in the Law Department. It is a matter of regret that those who must know the law should seem to be so ignorant about its rigours and requirements. The Government should now wake up soon and devise some methodology to see that papers for appeals are processed quickly and vigorously at all stages and scope for delay minimised to the bare minimum. Having reviewed the case law on the subject, as also done by us hereinabove, the decision reaches one conclusion, amongst others, that each case deserves to be decided on its own facts and circumstances and no straight jacket formulas can be prescribed, and that sufficiency of the cause for condoning the delay must ultimately be decided by the Court, on the facts of each case. This decision has been endorsed and followed by the same High Court in the case of State of U.P. v. Surendra Nath, reported at AIR 1992 Allahabad 127.

11. In view of the above discussion and findings, we conclude and hold in respect of the question raised in the present reference as under :

1. The phrase "sufficient cause" as occurring in Section 5 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply its mind and arrive at a conclusion as to whether the cause is sufficient or otherwise, in essence, therefore, the phrase "sufficient cause" is not a question of principle, but is a question of fact.

2. The plea on the part of the applicants that the delay was caused by "administrative delay/administrative reasons/administrative procedure" (and analogous expressions) is merely an averment in the nature of a plea and, that by itself and ipso facto, does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established on the facts of the case, and must so be established to the satisfaction of the Court.

3. The merits of the substantial case in respect of which condonation is sought cannot over-ride the provisions of Section 5 of the Limitation Act and the merits of the case cannot be regarded as either the sole factor or a predominant factor while adjudicating upon the sufficiency of the cause for condonation of delay.

12. Before concluding this matter we are also required to take note of an observation made in the referring order. In para 3 of the said order the relevant observation runs as under :

"If the delay is small, the cause shown would be sufficient; but if there is inordinately long delay, the court may refuse to condone the same."

We may observe, in the light of our above findings, that if the said observation is merely a general observation and is made merely with a view to indicate the possibilities of various situations, we need not comment on the same. If, however, this observation is to be construed as a proposition of principle, we must take exception to the same.

13. As already discussed hereinabove, the quantum or extent of the delay has no direct nexus in law with the sufficiency of the cause, inasmuch as the two are independent and diverse factors. In the context of Section 5 of the Limitation Act what is material is the sufficiency of the cause which is required to be established to the satisfaction of the Court. If the Court finds that the cause for delay is sufficient, the extent of the delay is immaterial. Obviously, therefore, the extent of the delay in itself would not determine whether the casue is sufficient or otherwise. It goes without saying that in a given case, sufficient cause may not be made out to the satisfaction of the Court and consequently the application for condonation would be rejected, in spite of the fact that the delay was relatively small. On the other hand, if the Court is satisfied that the .cause for delay is sufficient, it may condone even a large or long delay.

13.1 Lest we be misunderstood, we reiterate that the principle in law is only that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condonation of delay is sought. This docs not necessarily amount to saying that all applications for condonation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court concerned with the application for condonation would necessary exercise its discretion judicially in the light of the well established principles, as regards the appreciation of the relevant facts.

14. Thus, the questions under consideration are answered as indicated hereinabove. These applications shall be placed before the Division Bench for a decision on merits, in accordance with the principles stated herein.

M.B. Shah, J.

15. I agree with the reasons and conclusions arrived at in the judgment rendered by my learned brother Y. B. Bhatt, J. in short,, the question involved is whether delay in filing appeal or application is required to be condoned only because the appellant/applicant which is a Municipal Corporation has a good case on merits.

16. In the referring judgment, the Division Bench (Coram; R.A. Mehta & R.D. Vyas, JJ.) has observed :

"On the matter of condonation of delay, a reference to the Full Bench may appear to be unusual, but since there are quite a few such cases and more are likely, such reference is necessary. Since we are unable to agree with the conclusions of the earlier Division Bench, the comity required that a subsequent Division Bench may not take a contrary view on the same facts and circumstances of the case. Therefore, we think it proper to refer these applications to be placed before a larger Bench."

17. The Division Bench has not agreed with the conclusions of another Division Bench (Coram: C.V. Jani & R.K. Abichandani, JJ.) where the Division Bench has rejected the application for condonation of delay on the ground that the applicant has not disclosed the cause of delay. In paragraph 3 of the civil application, it is stated as under :

"The applicant states that the applicant could not prefer the appeal in time. The applicant states that the delay that has been caused in filing the appeal was beyond its control. The applicant states that the applicant was not at all negligent in preferring the appeal and he tried to prefer it in time. It was very vigilant in filing the appeal, but because of the administrative delay on the part of various departments of the applicant, the appeal could not be preferred in time. There was also no inaction on the part of the applicant."

The Court held that the applicant has not disclosed any cause for condonation of delay except using the phrase "administrative delay"; even the applicant has not cared to explain the delay in spite of an affidavit in reply being filed by the opponents; that no details are furnished nor the affidavit in rejoinder is filed. The Court further rejected the contention that while deciding the application for condonation of delay, the court was not required to decide whether the appeal has good merits but it may be one of the factors to be borne in mind, however the alleged merits would not be an excuse for the applicant for not disclosing the cause of delay so long as Section 5 of the Limitation Act stands on the Statute Book even if the most liberal view is taken.

18. At the time of hearing of these civil applications, Mr. Tanna, learned advocate for the applicants, vehemently submitted that substantive merits of the matter are required to be taken into consideration for deciding whether the delay in filing the appeal is required to be condoned. He further submitted that, for statutory bodies, corporations or Government undertakings, delay in filing appeal on the ground of administrative reasons or administrative procedure is required to be condoned without enquiring anything more.

19. In my view, these submissions are totally baseless mainly because they ignore the provisions of Sections 3 and 5 of the Indian Limitation Act, 1963.

20. Further, the contention that the delay is required to be condoned on the ground that the applicant has a good case on merits or that the merits of the matter should be considered as a predominant factor for condonation of delay requires to be rejected. Delay is condoned if sufficient cause for delay is shows. But that would not mean that for deciding the application for condonation of delay, merits should be decided. If the merits are decided for condoning delay, it would be against the provisions of Section 3 of the Limitation Act, 1963. Section 3, inter alia, specifically provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.Section 3 of the Limitation Act is mandatory and is based on well-recognised principles of equity. This bar is subject to the provision of Sections 4 to 24 of the Limitation Act.

21. In such a situation, Section 5 of the Limitation Act empowers the Court to condone delay if sufficient cause for not filing appeal or application within time is pointed out. Sufficient cause for delay in filing appeal can never be substituted by the merits of the matter for condonation of delay.

22. Further, whether the delay is for a short period or a long period is of no consequence because the Court is required to consider the reasons for delay and to apply to principles laid down in various cases. It is not, a matter of rule that because there is a short delay, it should be condoned or because there is a long delay, the application for condonation of delay should be rejected. It depends upon the sufficiency or otherwise of the reasons mentioned in the application for condoriation of delay. It is true that, while deciding as to whether sufficient cause for delay is pointed out or not, the court is required to view it liberally so that justice can be done to the parties and the matter is decided on merits instead of throwing it out. But that would not mean that, in the absence of any reason pointed out at the admission stage for condonation of delay, the delay should be condoned. In my view, if such a type of application is granted, it would encourage deliberate and palpable negligence on the part of the concerned persons who are required to decide whether appeal should be filed or not.

23. Secondly, it cannot be laid down that, because the application for condonation of delay is filed by a statutory corporation or Board or Government Undertakings, the delay can be condoned only on the vague reason mentioned in the application that it was for administrative reasons. This also cannot be accepted because before the court of law, statutory bodies and private bodies stand on the same footing. Law is equally applicable to both. However, while considering sufficient cause, the court may take into consideration the reasons for procedural delays in functioning of the statutory Corporations or Government bodies such as on the particular day the concerned officer was on leave or that he failed to attend to the work for some other valid reasons or that the-superior officers were not available during that period or that the file was misplaced or such other reasons. Beyond this, nothing could be done.

24. In the case of Rajendar Singh v. Santa Singh, AIR 1973 SC 2537, the Supreme Court held that the object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence, or laches. The Court has further observed that Courts of justice cannot legislate or reconstruct law contained in a statute or introduce exceptions when statutory law debars them from doing so. Even hard, circumstances of a case do not justify the adoption of such a course. The Court has also . stated that the effect of Section 3 of the Limitation Act is that it expressly precludes exclusion of time on a ground outside the Act even if it parades under the guise of a doctrine which has no application whatsoever. For the policy underlying statutes of limitation, the Court relied upon the following passage in Halsbury's Laws of England Vol. 24, p. 181 (para 330) :

"330. Policy of Limitation Act :

The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, (i) that long dormant claims have more of cruelty then justice in them (2) that defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

From this paragraph, if can be stated that person with good causes of action i.e., good causes on merits should pursue them with reasonable diligence.

25. Further, the aforesaid contention of the learned advocate for the applicants that for deciding the application for condonation of delay merits should be taken into consideration, ignores the provisions of Section 6. Section 3, inter alia, provides that any appeal or any application may be admitted after prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Therefore, 'sufficient cause' which is required to be shown in a cause for not preferring the appeal within the period of limitation. Therefore, 'sufficient cause' which is required to be determined by the Court is only with regard to the reasons given, or causes shown, by the appellant for not filing the appeal within time. It has no connection with the merits of the matter.

26. Further reliance placed on the decisions of the Supreme Court in the case of Collector. Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353, and in the case of G. Ramegowde v. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, for contending that the Supreme Court has observed that for condoning delay, the merits of the matter are required to be considered, is without appreciating the ratio laid down in the said judgments. Both the judgments only dealt with the aspect as to why the phrase 'sufficient cause' used in Section 5 should be liberally construed so that appeal or application can be decided on merits, but they nowhere lay down that before condoning delay, the Court should decide the merits of the matter and if the case is meritorious, delay should be condoned. As this aspect is already dealt with in detail in the judgment rendered by my learned brother Y. B. Bhatt, J. It is not dealt with here. Futher, the aforesaid two judgments of the Supreme Court nowhere lay down that the application filed by the corporation or statutory authority for condoning delay should be granted if the concerned officer of the statutory corporation merely states that because of administrative reasons there is delay in filing appeal. The decision in the case of Collector, Land Acquisition, Anantnag (supra) only states that doctrine of equality before law demands that all litigants, including the State have to be accorded the same treatment and the law is administered in an even-handed manner and that 'sufficient cause' should be liberally interpreted for the reasons stated therein. Six factors are enunciated in paragraph 3 for holding as to why 'sufficient cause' should be liberally construed.

27. Similarly, in the case of G. Ramegowda (AIR 1988 SC 897) (supra), the Court considered what factors would constitute 'sufficient cause' for the purpose of Section 5 and observed that a certain amount of latitude is not impermissible in favour of Government because of bureaucratic functioning. But that of course should be within reasonable limit. This judgment also in view nowhere lays down that delay should be condoned merely on the ground that, on merits, the authority has a good case.

28. The other decisions which are referred to by the learned advocates for the parties are discussed elaborately in the judgments rendered by my learned brothers, Y. B. Bhatt & H. L. Gokhale, JJ., and therefore I am not dealing with them.

29. Hence, it is required to be held that delay in filing appeal or application cannot be condoned solely on the so-called ground that there was delay because of administrative reasons administrative procedure.

30. In the result, it is held that -

(1) whether to condone the delay or not depends upon the facts and circumstances of each case as 'sufficient cause' for condonation of delay depends only on facts placed by the applicants before the Court;

(2) it cannot be held that because the applicant is a Municipal Corporation or a statutory authority, delay should be condoned even if no reason or cause for delay in filing appeal is mentioned in the application;

(3) mere mention of the phrase 'administrative delay' in the application for condonation of delay is no sufficient cause by any standard;

(4) whether the delay is for short period or long period is of no consequence. If sufficient cause is shown, long delay can be condoned and if no cause is shown, even delay for short period may not be condoned;

(5) the observations of the Supreme Court in the case of Ramegowda v. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, to the effect that whereas a private individual takes a decision one way or other almost instantaneously, a democratic Government or bureaucratic department hesitates arid halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency, nowhere state that because it is a Government authority or a statutory authority, delay should always be condoned. The Legislature has not provided any separate provision for condonation of delay for such authorities. In a case where the facts and circumstances which are placed on record indicating that because of bureaucracy one officer took the decision, other officer placed the matter for discussion and debate and that file was again forwarded for consideration, and consultation, again higher officers peeped through papers and files, prepared such notes and drafts and took some contrary decision and again decided to file appeal or in a case where a decision not to file appeal was taken fraudulently or for some ulterior motive, may be a good cause for condonation of delay. But these facts are required to be placed before the Court. By no standard a statement that there is delay because of administrative ground is sufficient cause for condonation of delay.

31. The majority view (Per : M. B: Shah & Y. B. Bhatt, JJ.) is as under :

1. The phrase 'sufficient cause' as occurring in Section 8 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply is mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase 'sufficient cause' is not a question of principle, but is a question of fact.

Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as 'sufficient cause' for condonation of delay depends only on the facts placed by the applicants before the Court;

2. The plea, on the, part to the applicants that the delay was caused by 'administrative delay administrative reasons/administrative procedure' (and analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too to the satisfaction of the Court. Hence, it cannot be held that, because the applicant is a Municipal Corporation or a statutory authority, delay should be condoned even if no reason or I cause for delay in filing appeal is mentioned in the application and mere mention of the phrase 'administrative delay' in the application for condonation of delay is no sufficient cause by any standard;

3. The merits of the substantial case in respect of which condonation is sought cannot over-ride the provisions of Sections 3 and 5 of the Limitation Act and the merits of the case cannot be regarded as the sole factor or a predominant factor while adjudicating upon the sufficiency of the cause for condonation of delay.

4. Whether the delay is for a short period or a long period is of no consequence. If sufficient cause is shown, long delay can be condoned and if no cause is shown, even delay for a short period may not be condoned.

5. The principle in law only is that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condonation of delay is sought. This does not necessarily amount to saying that all applications for condonation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court deciding the application for condonation would necessarily exercise its discretion judicially in 'the light of the well established principles, as regardes the appreciation of the relevant facts.

Gokhale, J.

32. I have had the advantage to go through the judgment prepared by my learned brother, Y. B. Bhatt, J. as also that of senior Judge, M. B. Shah, J., concurrent with him on the issues which are referred to the Full Bench in this matter, though I am not in a position to persuade myself to agree to the conclusions reached therein. This is primarily so because, in my humble understanding, the conclusions reached appear to be exectly contrary to the law laid down by the Honourable Supreme Court of India (per Hon'ble Venkatachaliah, J., as the then was) in G. Ramegowda v. The Special Land Requisition Officer, Bangalore, reported in AIR 1988 SC 897.

33. This reference deals with two aspects of condonation of delay and the same has been referred to the Full Bench in a rather unsual set of circumstances. A Division Bench of this Court (Coram: C.V. Jani and R.K. Abichandani, JJ.) declined to condone the delay in the appeals preferred by Ahme-dabad Municipal Corporation and rejected Civil Applications No. 587 to 1990 and 539 of 1990, by an oral judgment dated 24th June, 1992. Thereafter, the present group of matters, wherein; also there was delay and the Admedabad Municipal Corporation had applied for condonation of delay, came up before another Division Bench, i.e. before Shri R.A. Mehta and Shri R.D. Vyas, JJ. The oral judgment given by Shri C.V. Jani and Shri R.K. Abichandani, JJ. was relied upon by the respondents before be Division Bench of Shri R.A. Mehta and Shri R.D. Vyas, JJ. The Division Bench of Shri R.A. Mehta and Shri R.D. Vyas, JJ. found themselves unable to agree with the conclusion of the earlier Division Bench, Hence they observed :

"The comity requires that the subsequent Division Bench may not take a contrary view on same facts and circumstances and, therefore we think it proper to refer the applications to be placed before the larger Bench."

34. From the referring order, it further appears that in the opinion of the referring Division Bench, there was difference in the situation where there was a small delay as against where there was gross delay. In their view, probably, if the delay is small, the Court may condone the same whereas it may not do so where the delay is gross. The referring Division Bench, therefore, observed that, 'on the matter of. condonation of delay, reference to the Full Bench may appear to be unusual', but again as stated hereinabove, they thought it fit to refer it so from the point of view of comity. The reference to the Full Bench was also thought appropriate because in the words of the referring bench "when there are tens of thousand of municipal appeals every year and are decided by Small Cause Courts there may be a few cases where delay may occur in filing appeals (to the High Court)". That being the magnitude of the problem it was thought fit to obtain a clear enunciation from the Full Behch.

35. The other issue which comes up for consideration is on account of difference of opinion on another aspect of condonation of delay. It was canvassed before the earlier Division Bench that the merits of an appeal should be gone into while deciding the application for condonation of delay filed by a public body. That submission did not find favour with the earlier bench. We are told at the bar that, that was the other aspect on which the perception of the referring Division Bench was different, though the referring order is not very clear about it.

36. In view of the above stated position, the questions raised for our consideration are mainly two -- (a) whether the small delays in the filing of appeals and applications by public bodies should be generally condoned; and (b) whether while considering an application for condonation of delay filed by a public body, the merits of the main matter should also be considered as a predominant factor.

37. The learned counsel for the applicant, Ahmedabad Municipal Corporation, and those for the opponents have taken us through a number of relevant decisions in this behalf. The learned counsel for the Ahmedabad Municipal Corporation relied upon the following authorities :--

(1) Collector. Land Acquisition, Ananatnag v. Katiji, reported in AIR 1987 SC 1353;

(2) G. Ramegowda v. The Special Land Acquisition Officer, Bangalore, reported in AIR 1988 SC 897;

(3) Saridhya Rani v. Sudha Rani, reported in AIR 1978 SC 537; and (4) Municipal Corporation of Ahmedabad v. Manish Enterprises, reported in 33(2) Guj LR 1252 : (AIR 1993 Guj 145).

It was submitted by the counsel for the applicant that the law laid by the Surpeme Court in Collector, Anantnag's case, as amplified in Ramegowda's case, holds the field. In fact, the latter judgment answers both the queries that are raised in the present reference. In Collector, Land Acquisition, Anantnag's case, an appeal preferred by the state of Jammu & Kashmir against a decision enhancing compensation in respect of acquisition of lands for public purpose had been dismissed as time barred by four days. Hence an appeal by Special Leave had been preferred to the Supreme Court. In the facts of the case, the Supreme Court held that there was sufficient cause for delay and, hence, the order of the High Court was set aside. However, what the Supreme Court observed while deciding the matter is most relevant. The Supreme Court noted that the power to condone delay in Section 5 of the Indian Limitation Act, 1963, had been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits. The Court observed that the expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice, which is the life-purpose for the existence of the institution of Courts." And then the Court laid down that such a liberal approach is adopted on a principle as it is realized that :--

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meriterious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) 'every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense pragmatic manner;

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other (sic) to cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

Thereafter, the Court held that thedoctrine of equality before law demands that all litigants, including the State have to be accorded the same treatment in an even-handed manner, in the matter of condonation of delay. The Court noted : "in fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though moredifficult to approve. "The Court further observed-- "the same approach has to be evidenced in its application'to matters at hand with the end in view to do even-handed justice on merits in preference approach which scuttles a decision on merits."

38. Thus, while condoning a small delay of four days, the Supreme Court laid down the guidelines containing the message which it wanted to percolate down to all other Courts in the hierarchy. The emphasis in the judgment is clearly on understanding the difficulties of the State and the public bodies and to decide the matters on merits in preference to technical considerations.

39. The same approach finds a place in the subsequent judgment of the Supreme Court in the case of Ramegowda reported in AIR 1988 SC 897.

That judgment was given in three appeals by claimants-respondents in certain Land Acquisition Appeals before the High Court of Mysore (Karnataka). The High Court had condoned substantial delays leading to the appeals to the Supreme Court. The grievance of the State in the appeal before the High Court was that, though the lands were purchased in the year 1962 for a sum of Rs. 7,000/- per acre and though the preliminary notification for acquisition was issued in just about a year after the purchase by the claimants, the Land Acquisition Officer made a generous award, granting Rs. 58,000/- per acre and that was further enhanced by the Civil Court to Rs. 1,45,200/-per acre.

40. The grievance of the appellants in the Supreme Court against the order of the High Court condoning delay was two fold. Firstly, there was inordinate and wholly unjustified delay and the fact that the Government Pleaders had not discharged their duty, even if true, would be wholly besides the point and that would be a matter of internal administration, It was contended that there could not be one standard for an ordinary litigant and another for the Government. The second submission was that, on the merits of the cause shown, the explanation served only to aggravate the negligence. In this case, it was contended that the explanation of the State Government, at best, would amount to a sufficient cause for a part of the delay, i.e. upto and not beyond 20-1-1971 when the Civil Judge had written to the Government and the letter was put on notice of the award and decree passed in the case. Hence, the subsequent delay over an year thereafter in preferring the appeals, even on the most liberal construction of sufficient cause, could not be said to be justified.

41. On the first aspect of the matter, the Government narrated the chronological sequence of events and put it on affidavit that the delay was on account of the fraud played by the concerned Government Pleaders" and the delay in filing the appeals would result into more than a crore of rupees loss to the Government. The Supreme Court, in paragraph 7 of the judgment, referred to the various earlier judgments, including the one in Collector, Land Acquisition, Anantnag (AIR 1987 SC 1353) (supra) and held as follows :

"If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel, there is no reaspn 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 must receive a liberal construction so as to advance substantial justice and generalty delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the dalay."

Thereafter, the Supreme Court, in Rame-gowda's case (AIR 1988 SC 897), quoted the following passage in the case of Collector Anantnag, with approval (Para 7):--

"When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay.

It must be grasped that judiciary is respected not on account of its power to legalise injustice ,on techinical grounds but because it is capable of removing injustice and is expected to do so."

42. Having laid down the above general proposition in paragraph 8 (of AIR 1988 SC 897), the Supreme Court proceeded to examine the special aspects in litigations on which Government is a party. The Supreme Court noted that if the appeals brought by the Government are lost by such defaults, in the ultimate analysis, what suffers is the public interest. Although the law of limitation is, no doubt, the same for a private citizen as for the Government, the Court noted that, a somewhat different complexion is imparted to the matter where Government makes a case where a public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents or where the officers were clearly at cross-purposes with it. Thereafter, the Court observed as follows (at p. 901) :--

"Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes ofSection 5 it might, perhaps, be some what unrealistic of exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning -- of course, within a reasonable' limit is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. .....While a private person can take instant decision, a 'bureaucratic or democratic organ' it is said by the learned Judge "hesitates and debates, consults and considers speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, -- unmindful of time and impersonality."

43. The learned counsel for the applicant placed reliance on the aforesaid passage arid contended that, as noted by the Honourable Supreme Court, a certain amount of procedural delay is implicit and incidental to the very decision making process of the public bodies and, hence, as held by the Supreme Court, "a certain amount of latitude, is, therefore, not impermissible. ...... Due recognition of these limitations on Governmental functioning -- of course, within a reasonable limit -- is necessary if the judicial approach is not rendered unrealistic." He, therefore, emphasised that short delays, if any, as observed by the referring Division Bench, in the appeals by public bodies, will have to be of necessity condoned.

44. The second submission of the appellants in G. Ramegowda's case (AIR 1988 SC 897) was attributable to the Government itself and not to the Government Pleaders. This was so because the Civil Judge concerned had written to the Government on 20th February, 1971 and the letter was put on notice of the award and decree passed in the cases. Hence, the delay on the part of the Government thereafter for over a year could not be said to be either bona fide or compelled by reasons beyond its control. The Supreme Court accepted this criticism and yet held as follows (at page 901) :--

"This criticism is not without substance. Government could and ought to have mpved with greater diligence and dispatch consistent with the urgency of the situation. The conduct of Government was perilously close to such inaction as might, perhaps; have justified rejection of its prayer for condonation. But as is implicit in the reasoning of the High Court, the unarticulated thought, perhaps, was that in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits."

The Supreme Court preferred not to interfere into an order of the High Court clearly indicating that in spite of this conduct of the Government "so perilously close to inaction"

which might have justified rejection of its prayer for condonation, the examination of the merits of the controversy was in the interest of keeping the stream of justice pure and clean. Based on these, observations of the Honourable Supreme Court (per Venkala-

chaljah, J., as he then was), the learned counsel for the applicant Municipal Corpora-

tion submitted that the examination of the merits of the main controversy should always be considered as a predominant factor while deciding the application for condonation of delay.

45. The other two authorities relied upon by him, on behalf of the applicants are Sandhya Rani v. Sudha Rani, reported in AIR 1978 SC 537, which is an earlier judgment on the same lines as also the judgment of a single Judge of this Court in Municipal Corporation of Ahmedabad v. Manish Enterprises, reported in 33(2) Guj LR 1252 : (AIR 1993 Guj 145). Sandhya Rani v. Sudha Rani was a case between private parties arising out of a decree passed in a suit for specific performance of contract for sale of immovable property, wherein the request for condoning the delay in preferring an appeal came to be considered. However, the observations of His Lordship Mr. Justice D. A. Desai in that matter are precursor to the observations of the Supreme Court in the case of Collector, Anantnag and relevant for our purpose. The Supreme Court observed in the said matter as follows (para 8, at p. 542 of AIR) :

"It is undoubtedly true that in dealing with the question of condoning the delay under Section 5the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. However, it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under Section 5. But those words should be liberally construed so as to advance substantal justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken."

In the judgment of the learned single Judge of this Court reported in 33(2) Guj LR 1252 : (AIR 1993 Guj 145), the learned single Judge has followed the law laid down in the case of Collector, Anantnag (AIR 1987 SC 1353) and Ramegowda's case (AIR 1988 SC 897) and has held -- ......"the Court has to bear in mind the principle of substantial justice. .... The question is whether there is inaction negligence or want of bona fides as observed by the Supreme Court. He further observed in para 8 of his judgment-- ......"However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic Government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency."

46. The learned counsel for the respondents relied on the following authorities;--

(1) Ajit Singh v. State of Gujarat, (1981)22 Guj LR (SC) 268;

(2) State of Gujarat v. Sayed Mohd., AIR 1981 SC 1921;

(3) Ram Bhavan Singh v. Jagdish, reported in (1990) 3 JT (SC) 704;

(4) Binod Bihari Singh v. Union of India, AIR 1993 SC 1245; and Two judgments of the Allahabad High Court, namely, (1) State of U.P. v. Phota, AIR 1991 All 229; and (2) State of U.P. v. Surendra Nath, AIR 1992 All 127.

From amongst the four judgments of the Honourable Supreme Court cited on behalf of the respondents, two are prior to the decisions in Collector, Anantnag (AIR 1987 SC 1353) and Ramegowda (AIR 1988 SC 897), whereas two are subsequent. The first one, namely, Ajit Singh's case, is a note of the Supreme Court judgment which note is reported in (1981) 22 Guj LR 268. That was a criminal appeal against acquittal being Criminal Appeal No. 329 of 1979, decided by the Hpnourable Supreme Court on 9-1-1981, against the judgment and order of the Gujarat High Court. In that case, as the note of the judgment records -- "the appeal to the High Court) was not filed at first instance because the State Government saw no case on the merits for an appeal and it was filed only because the High Court had observed - and that was long after limitation had expired --that the case was fit for appeal by the State Government." The note further records the observation of the Supreme Court -- "It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allowes limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time." In my humble' understanding, the next sentence thereafter is the ratio of the judgment which reads as follows:--

"No event or circumstance arising after the expiry of limitation can constitute such sufficient cause."

The proposition laid down in this judgment is, thus, quite different from the controversy that is required to be resolved in the present reference.

47. The second judgment, namely, State of Gujarat v. Sayed Mohd. (AIR 1981 SC 1921) was a case arising in a situation where the sole respondent to the appeal died. No application was made within 90 days of the date of death for bringing the heirs on record. The application for having the abatement set aside could have been made within the period of 60 days following that date. The application totally made in that behalf was time barred by more than three months and a half. As the Supreme Court observes "No sufficient cause, however, for the condonation of the delay is made out from any material on the record; As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move Court till the 29th August, 1979 either for haying the legal representatives of the deceased brought on record or for having the abatement set aside after it had taken place. His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant." It is true that it was contended on behalf of the State in the Supreme Court that it had a strong case on merits and the Supreme Court has rejected the said submission on the following lines (Para 3):--

"Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into."

As can be seen, it appears that a situation wherein a public interest would suffer by dismissing of the appeal was not there before the Supreme Court in that matter nor was such a submission advanced. Hence, the said judgment cannot be read to mean anything contrary laid down prior to the judgments in Collector, Anantnag's (AIR 1987 SC 1353) and Ramegowda's (AIR 1988 SC 897) cases.

48. The next two cases relied upon by the respondents are Ram Bhavan Singh v. Jag-dish (19.90) 3 JT (SC) 704 and Binod Bihari Singh v. Union of India, AIR 1993 SC 1245. I do not understand, how they can advance the proposition advanced on behalf of the respondents. The first out of the two cases was between two private parties and the second one was one wherein it was the State which had pleaded the bar of limitation. None of the two cases were cases wherein the problem of condonation of delay in appeals or applications filed by a public body occur. In the case of Ram Bhavan Singh, delay of 198 days, i.e. over three years and three months, had occurred and according to the appellants, the same had occurred unwillingly and since they had been prosecuting with due diligence the earlier proceedings before the appropriate authority and on the basis of the advice given by their counsel. That was also a case where the so called subsequent proceedings were without any authority of law. In the facts of the case, the Supreme Court observed as follows:--

"There is no proper affidavit of either the appellants or the counsel in support the application for condonation of delay. There is also no others material to indicate that the appellants had exercised due diligence in working out their remedies and sought proper advice in the matter. When the party had no right of appeal, the proceedings instituted before the High Court challenging the judgment in the writ petition cannot be considered to be one in good faith. The subsequent proceedings are also not legal and valid."

Even so, the Supreme Court went into the merits of the case, examined the same in details and found that, even on merits, the appellants could not succeed.

49. In Binod Bihari Singh's case (AIR 1993 SC 1245) there was delay in the appellant filing the arbitration award in Court. To seek the condonation, the appellant had sought to make positive case that he had filed application within three weeks from the date of receipt of the award. On the evidence before the, Court, the High Court disbelieved that evidence and it was held that delay could not be condoned on the ground that the appellant was misled by the provisions of the old limitation Act. Ramegowda's case (AIR 1988 SC 897) was cited before the Supreme Court by the appellant by contending that the Court should be slow in shutting the door of justice to a litigant on the score of limitation to defeat a just claim because a litigant does not stand to gain by coming late to a Court. In the facts of the case, however, the Supreme Court held -- "In our view, it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be, taken by the Court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act..........the appellant, in this case, having taken a false stand on the question of receipt of the signed copy of the award to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood on his part by rejecting the plea of limitation raised by the respondent."

50. In, the two judgments of the Allahabad High Court, the High Court declined to condone the delay in the appeals filed by the State Government. In the first case, i.e. State of U.P. v. Phota(AIR 1991 All 229), the facts and submission as to how public interest will suffer in the event the delay in filing the appeal was not condoned were not placed before the High Court and, in the facts of the case, the High Court held that, at every stage, the Government of officials had been negligent and guilty of inaction, in the second case, i.e. State of U. P. v. Surendra Nath (AIR 1992 All 127) the delay sought to be explained was on account of the strike by lawyers. But the same was rejected in the facts of the case since the office of the Chief Standing Counsel was functioningduring the strike and the Registry of the High Court was open. The Court held that the State Government had not cared to explain the delay despite several opportunities given to it. In this case also, though the propositions laid down by the Honourable Supreme Court in Collector, Ananthnag (AIR 1987 SC 1353) and Ramegbwda's case (AIR 1988 SC 897) are quoted. In the facts of the case it does not appear to have been pleaded before the High Court that public interest would suffer on account of the delay not being condoned. Both the judgments are, therefore, clearly distinguishable on facts and do not lay down any proposition of law.

51. In the light of the discussion made above, it is clear that the law laid down by the Supreme Court in the case of Collector Anantnag and G. Ramegowda's case stands undisturbed. It is no doubt true that under Section 5 of the Limitation Act, 1963, any appeal or application (other than the category excluded under Section 5) may be admitted, after the prescribed period, only if the appellant or the applicant satisfies the Court that he had' sufficient cause for not preferring the appeal or making the application within Such time. However, as laid down by the Hon hour able Supreme Court in paragraph 8 of. G. Ramegowda's case, a certain amount of latitude is not impermissible. . . . .Due re-cognition of the limitations on Government functioning, within a reasonable limit is necessary, if the judicial approach is not rendered unrealistic. Hence, short delays which are attributable to procedural delay and incidental to the very decision making process of the public bodies have generally to be condoned. This answers the first out of the two questions before us for our consideration.

52. Again as stated in the case of Collector, Anantnag (AIR 1987 SC 1353) the power to condone delay has been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits and, as held in the case of G. Rame-gowda -- "In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost by such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. ..... .a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. Therefore in assessing what, in a particular case, constitutes 'sufficient cause', it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict these factors which are peculiar to and characteristic of the functioning of the Government." That answers the second issue referred to us for our consideration and it has to be held that, while considering an application for consideration of delay by a public body; the merits of the main matter should also be considered as a predominant factor.

53. My brother Judge, Shri M. B. Shah, J., in his judgment concurring with brother Y. B. Bhatt, J., has referred to the judgment of the Apex Court in Rajendra Singh v. Santa Singh, reported in AIR 1973 SC 2537. That was a dispute between two private parties. The plaintiffs-appellants in that matter had filed a suit for possession of certain pieces of land wherein the defendants-respondents had pleaded the bar of limitation as well as acquisition of title by their adverse possession for over 12 years. The plaintiffs-appellants had pleaded that in view of pendency of an earlier suit by the defendants against the plaintiffs in the meanwhile, the doctrine of Us pendens prevented the rights of the defendants from maturing by adverse possession. The Supreme Court held that the subsequent suit of the plaintiffs was barred by Article 142 of theLimitation Act, 1908 and the principles of lis pendence. could not be invoked by the plaintiffs. It was in this context that the Supreme Court quoted paragraph 330 on the "Policy of Limitation Acts" from Halsbury's Laws of England, Vol. 24, at page 181 and held that the object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by party's own inaction, negligence, or laches. In my view, this is a well recognized long standing proposition on law of limitation. However, this does not vitiate or reduce the significance of the proposition laid down'by the Supreme Court subsequently in the cases of Collector, Anantnag (AIR 1987 SC 1353) and Ramegowda(AIR 1988 SC 897). En those cases, the Supreme Court was concerned directly with the considerations to be borne in mind while deciding the applications for condonation of delay by public : bodies. Identical issues are raised in the present, reference. Hence, the propositions laid down in these two cases clearly govern the issues raised in this reference.

54. In fact, the issues which are raised in the present reference were clearly answered by His Lordship, Mr. Justice Venkatchaliah (as he then was), as pointed out at an G. Ramegowda's case. Apart from laying down the propositions of law, the delay by the State for over a year, which could not be said to be for reasons beyond its control, was condoned, so that the 'stream of justice remains pure and clear' and the examination of the merits of the controversy takes place. I do not think that it is possible for me to put it in any better way.

55. For the reasons stated above, I beg to differ with my brothers, M. B. Shah, J. and Y. B. Bhatt, J. and answer the two issues framed in paragraph 4 of this judgment as follows:--

(a) Small delays in the filing of appeals and applications by public bodies should be generally condoned.

(b) While considering an application for condonation of delay filed by a public body, the merits of the main matter should also be considered as a predominant factor.

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