1. Invoking provisions of Section 115 of the Code of Civil Procedure, 1908, challenge is laid in the afore-noted civil revision petition to the Order dated 07.02.2020 passed by the learned District Judge, Puri, wherein the delay of more than 25 years in filing the Appeal under Section 96, registered as R.F.A. No.60 of 2019, after dismissal of petition to restore the suit under Order IX, Rule 13 in the year 2000, has been condoned.

Facts:

2. The opposite party No.2 herein, as appellant, preferred appeal under Section 96 of the Code of Civil Procedure, 1908 (“CPC”, for convenience), registered as R.F.A. No.60 of 2019, before the learned District Judge, Puri assailing the judgment and decree dated 21.06.1994 passed by the learned Civil Judge, Senior Division, Puri in Title Suit No.191 of 1992 (be called "judgment of trial Court” hereinafter). The opposite party No.2 had also filed petition under Section 5 of the Limitation Act, 1963 for condonation of delay of more than 25 years in filing the said appeal.

2.1. In the affidavit of the Administrator of Shri Jagannath Temple Managing Committee it has been affirmed that he could come to know about the judgment being passed on 21.06.1994 in TS No.191 of 1992 only on 10.09.2019, i.e., after 25 years. To support the said astounding fact on affidavit, it has been stated at paragraph 1(d) as follows:

“That the service of summons of the said TS No.191 of 1992 was not served personally on the then Administrator of the Temple. The certified copy of order sheet of CS No.191 of 1992 dated 11.04.1984 (sic.) reveals the SR of summons back against defendant on personal service which appears not correct since all these summons will be received by authorised clerk on behalf of Administrator and he will put up the same before the Administrator, Puri further orders. This being the practise of the Temple Administrator services of notice personally on Administrator appeared to be lawful and suspicious.”

2.2. While objecting to such manner of service of summons being effected, the opposite party No.2-appellant claimed to have come to know about the judgment of trial Court on 10.09.2019 and inter alia contended in the petition for condonation of delay as follows:

“Section 80 CPC notice is not served as per CPC on Collector, Puri and Administrator of Sri Jagannath Temple, Puri. The Order-sheet does not reveal leave is taken by plaintiff of said suit under Section 80(2) of CPC for urgency and leave has been granted to file suit by not serving notice under Section 80 CPC on these defendants.”

2.3. From the objection filed by the petitioner herein (respondent No.1 in appeal) to the said petition of the opposite party No.2, it is culled out that assailing the ex parte judgment, the opposite party No.2-appellant had filed a petition under Order IX, Rule 13 of C.P.C. on 12.04.1996, which was registered as Miscellaneous Case No.103 of 1996. Said petition got dismissed by order dated 25.09.2000 for failure to take steps. Further explanation at paragraph 4 of said objection transpires that,

“That the allegation made in paragraph 1(b) of the condonation petition is concerned it is submitted that the averments are not correct. Notice under Section 80, CPC has been served upon the defendants prior to filing of this suit and in the present case in paragraph 18 of the plaint of TS No. 191 of 1992 it is clearly pleaded that notice under Section 80 CPC was sent to the defendants on 28.01.1992 by registered post with AD and the same was received by both the defendants on 29.01.1992 and the suit was filed on 23.06.1992, i.e. long after expiry of the period of two months and Section 80(1) clearly states that a statement regarding service of 80 CPC notice shall be pleaded in the plaint, which has been clearly pleaded in paragraph 18 of the plaint. The plaint would not have been admitted without verification of the notices under Section 80, CPC. Therefore no fault can be found with the plaintiff of the said suit. It is false to say that no notice was served upon the defendants prior to two months of filing of the suit. The office copy of both the notices along with the original registration receipt and AD were filed along with the plaint and only thereafter the plaint was admitted and notices were issued to both the defendants.”

2.4. Clarification as available at paragraph 6 of the objection stands as follows:

“That so far the allegations made in 1(d) of the condonation petition is concerned they are all false, frivolous and specially denied. Order sheet of TS No.191 of 1992 dated 02.02.1994, 21.03.1994 and 11.04.1994 clearly reflects that on 02.02.1994 summons were sent to the defendants on both the ways. Order-sheet dated 21.03.1994 clearly reflects that SR against defendant Nos.1 and 2 are back and Order-sheet dated 11.04.1994 reflects that SR of summons against the defendants were served on personal service and they being Government officials service of summons against them are accepted as sufficient. Both of them were found absent on call and no steps were taken, hence they were set ex parte. The official acts are presumed to be correct and mere allegations regarding non-service of summons is not acceptable nor the presumption arising out of the Court record can be ignored on such bald allegations In this regard the order-sheet dated 29.04.1994 and 09.05.1994 may kindly be seen. Order-sheet dated 29.04.1994 reflects that the affidavit evidence filed by the plaintiff after granting of permission under Order 19, Rule 1, CPC on 18.04.1994 was put up and the matter was heard and the same was accepted and the suit was posted to 11.05.1994 for ex parte judgment. On 09.05.1994 the defendants filed a petition for time to file W.S. which clearly shows that the present Appellant was fully aware about the suit and they have also appeared on 09.05.1994. In the said suit but their appearance was ignored by the Court as because the matter had already been posted for ex parte judgment and there was no stage for appearance or to file any W.S. once the hearing has been concluded and the matter was posted for judgment. This is another circumstance to show that the present Appellant was fully aware about the suit and its proceeding.

It is to mention here that the present Appellant was aware about the suit and its result as Misc Case No. 103 of 1996 was filed by the Appellant before the Learned Sub-ordinate Judge, Puri against the present Respondents and the said Misc. Case was filed on 12.04.1996 under Order IX, Rule 13 read with Section 151 CPC with a prayer to set aside the ex parte decree dated 21.06.1994. The Miscellaneous Case was filed after expiry of one year ten months from the date of ex parte decree. The Order dated 02.01.1997 of Miscellaneous Case No.103 of 1996 indicates that office note was ready and the matter was posted to 24.02.1997 when the petitioner to take steps against the opposite parties and for consideration of limitation petition.

From 24.02.1997 twenty dates were adjourned, i.e. upto 11.08.2000 for filling requisites for issuance of summons to the opposite parties and for consideration of limitation petition but the petitioner, i.e., Sri Jagganath Temple did not take any steps for issuance of notice against the opposite parties and ultimately the matter was posted to 25.09.2000 on which date no steps were taken from the side of the petitioner and ultimately the Miscellaneous Case No.103 of 1996 was dismissed.”

The impugned Order dated 07.02.2020 passed by the learned District Judge, Puri:

3. The learned District Judge, Puri having considered the petition under Section 5 of the Limitation Act, 1963, condoned the delay of more than 25 years and admitted the appeal being RFA No.60 of 2019.

3.1. Taking note of Biranchi Narayan Kuanr Vrs. Khera Rana, 2019 (II) CLR 688 (Ori), holding that despite dismissal of petition under Order IX, Rule 13 of the CPC for default, the appellant has a right to prefer appeal, the learned District Judge, Puri made the following observation:

“Now it is to be seen whether the delay occurred in present appeal can be excluded or condoned after 25 years and more. Admittedly, originally the suit property belonged to Shri Jagannath Mahaprabhu of Puri and the present appellant is the Marfatdar of the temple as well as its property represented through its Administrator, admittedly the then Administrator of Managing Committee though appeared in the suit did not contest and allowed the suit to be decreed ex parte in favour of the present respondent No.1. The matter does not end there. Again after some years an application under Order IX, Rule 13 of the CPC was filed for setting aside the said ex parte decree and the same was also dismissed due to non-prosecution. In a decision reported in 108 (2009) CLT 61 in the case of Lokesh Patro and Anr. Vrs. Commissioner of Endowments, Orissa & 6 Ors., our Hon‟ble High Court has been pleased to observe as follows:

9. There can also.be no dispute to the settled legal position that the deity is a juristic perpetual/ minor/and disable person and in respect of the property belonging to the minor and a persons in capable to cultivate the holdings by reasons of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/trustee/pujari and ultimately the state authorities are under obligation to protect the interest of such a minor or physically disabled persons. The deity cannot be divested of any title or rights of immovable property in violation of statutory provisions, The object is laudable and based on public policy. In order to protect its interest even a worshiper having no interest in the property may approach the authority or Court. If any person claim to have acquired any-kind of right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession as well as the right title/interest in the property.

In another decision reported in 2012 (1) OJR (275) in the case of Deben Sethi Vrs State of Orissa and others our Hon‟ble High Court have been pleased to observe as follows:

12. There can be no dispute to the settled legal proposition that the land belonging to the deity cannot be subject to alienationin violation of statutory requirement. (see, Temple of Thakruji Vrs. State of Rajasthan, AIR 1998 Raj 85). Therefore, right, title and interest over the land/property‟ belonging to Lord Jagannath always vests with the deity.

13. There can also be no dispute to the settled legal proposition that the deity is a juristic perpetual minor/and disabled person, and the property belonging to the minor and a person incapable to cultivate the holding by reason of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/ trustee/pujari and ultimately the State authorities are under obligation to protect the interest of such a minor or physically disabled person. The deity cannot be divested of any title or rights of immovable property in violation of the statutory provisions. The object is laudable and based on public policy. In order to project its „interest even a worshiper having no interest in the property may approach the authority or Court.

14. As a general proposition of law, if any person claims to have acquired any kind of right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession as well as the right, title and interest in the property.

As discussed above the entire property of Shri Jagannath Mahaprabhu bije at Puri was being managed by the Managing Committee represented through its Administrator. In other words, the Managing Committee was the marfatdar of the Temple and the property. Since Prabhu Jagannath bije at Puri is a juristic perpetual minor and disabled person and cannot protect properties of its own and in that case the State Authorities and the Managing Committee are under obligation to protect the interest of such a minor or physically disabled person. But in the suit filed by the present Respondent No.1 the reasons best known to the Temple Authority and the State Authorities is as to how they allowed the present Respondent No.1. to obtain a decree in his favour ex parte by not contesting the suit. It otherwise suggestive of the fact that the obligation of the State Authorities and the Temple Authorities was not discharged properly by its Administrator nor the interest of Lord Jagannath was protected. It is pertinent to mention here that after obtaining such decree the present Respondent No.1 has never produced the same before any authority as for the first time when the demolition work was going on around the Jagannath Temple, the said decree was produced before the Collector-cum-District Magistrate, Puri and claim was made. Therefore, taking into consideration the aforesaid circumstances, as discussed, this Court is of the view that the properties of Prabhu Jagannath Bije at Puri cannot be divested in such a manner by not discharging the obligation by its marfatdars. In the decision of Estate Officer Haryana Urban Development Authority and Anr. Vrs Gopi Chand Atreja (Supra) [(2019) 2 SCR 1000] the Hon‟ble Apex Court have refused to condone the delay because of the latches of some officials in presenting the appeal in time, but the facts and circumstances of the case is not applicable in the present case. In as much as the present appeal has been preferred challenging the judgment and decree obtained as void and obtained by fraud. Accordingly, the decision reported in 2017 (II) OLR 419 filed by the present Respondent No.1 is also not found applicable in the present facts and circumstances of the case. So in view of the aforesaid discussion this Court is of the view that length of delay is no matter, acceptability of the explanation is the only criterion and when the appellant has successfully explained its case for filing the present appeal after delay of 25 years and more, this Court allows the application filed under Section 5 of the Limitation Act constituently and the delay is condoned and the appeal admitted. Put up on 12.03.2020 for LCR.”

Hearing:

4. Pleadings, being completed and exchanged among the counsel for respective parties, on their consent, the Civil Revision Petition is taken up for hearing.

4.1. Heard Sri Susanta Kumar Dash, learned Advocate for the petitioner, Sri Satyabrata Mohanty, learned Additional Government Advocate for the opposite party No.1 and Sri Subrat Satpathy, learned Advocate for the opposite party No.2.

Contentions and arguments:

5. Sri Susanta Kumar Dash, learned Advocate put forth that falsity of statement regarding the date of knowledge of judgment of trial Court, i.e., 10.09.2019 as projected by the opposite party No.2 before the appellate Court is apparent from record. Said date of knowledge is a myth and far from truth. The appellate Court has failed to appreciate the factual position and thereby did not exercise his jurisdiction vested in him justly while condoning the delay of more than 25 years in filing appeal. Thus, this Court has the jurisdiction to entertain this civil revision petition under Section 115 of the CPC.

5.1. Submitting that the factual aspect on merit of the judgment of the learned trial Court vi-a-vis grounds of appeal cannot be gone into at the stage of consideration of petition for condonation of delay in filing appeal in view of ruling of the Hon‘ble Supreme Court of India in the case of Pathapati Subba Reddy Vrs. The Special Duty Collector (LA), 2024 INSC 286, he has sought to apprise this Court that the opposite parties, the Collector, Puri as well as the Shree Jagannath Temple Managing Committee, Puri was aware of the ex parte judgment and decree dated 21.06.1994 passed in TS No.191 of 1992, inasmuch as a petition under Order IX, Rule 13 of the CPC bearing Miscellaneous Case No.103 of 1996 filed on 12.04.1996 at the behest of the opposite party No.2 got dismissed after having availed opportunities on 02.01.1997 and thereafter for many occasions since 24.02.1997 till 11.08.2000 and 25.09.2000. The Shri Jagannath Temple Managing Committee nor did the Collector take any step to revive the miscellaneous case or did they contemplate filing of appeal under Section 96 of the CPC. Rather the opposite parties chose to keep quiet for over 19 years since 2000. Waking from deep slumber for more than 25 years since the judgment of the trial Court has been passed the appeal has been preferred in the year 2019. The learned District Judge, Puri having misdirected himself by weighing the merit of the judgment and decree dated 21.06.1994 passed in TS No.191 of 1992, illegally exercised his discretion while ignoring the merit of the objection raised against the contents of the petition under Section 5 of the Limitation Act in connection with condonation of delay in filing the appeal.

5.2. The learned District Judge, Puri transgressed his jurisdiction by considering that the deity is perpetual minor and its properties were required to be protected. The appellate Court failed to appreciate germane fact that the State of Odisha was represented by the Collector, Puri and the deities were represented by the Shri Jagannath Temple Managing Committee, Puri.

5.3. The Shri Jagannath Temple Act, 1955 has been introduced by ceasing application of the provisions of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act 2 of 1952) to the said Temple for providing better administration and governance of Shri Jagannath Temple at Puri and its endowments. Pursuant to said Act, Managing Committee has been formed. Therefore, the contention of the opposite party No.2 that the interest of the deities, being perpetual minor, should be protected by hearing the appeal on merit is illogical or irrational, as it is the responsibility of the Managing Committee to see that the interest of the Temple is protected.

5.4. Having knowledge about the dismissal of petition under Order IX, Rule 13 of the CPC in Miscellaneous Case No.103 of 1996 for setting aside judgment and decree dated 21.06.1994 in the year 2000, the learned District Judge, Puri committed error of record by condoning the delay in filing appeal against the self- same judgment and decree passed by the Civil Judge, Senior Division, Puri, being swayed away by the fact pleaded by the Shri Jagannath Temple Managing Committee as reflected in the petition for condonation of delay that,

“*** it came to knowledge of the present Temple Administration is on 10.09.2019 is about 25 (twenty five) years. Within this 25 years there was no occasion for the Temple Administrator to know about the ex parte judgment passed in the above mentioned suit ***” Strongly contending, Sri Susanta Kumar Dash, learned Advocate would submit that the glaring factual error led to the learned District Judge, Puri acting with material irregularity having not considered the objection filed on behalf of the petitioner (Annexure-2) to the petition for condonation of delay.

5.5. Strenuous arguments were advanced by Sri Susanta Kumar Dash, learned counsel to urge that the approach of the District Judge by taking into consideration the merit of the appeal without considering the objection raised by the petitioner while disposing of petition for condonation of delay of around 25 years and odd is not only arbitrary but also fanciful exercise of power vested in him. There has been sheer non-application of mind and the discretion as utilised by the learned District Judge, Puri in favour of the Shri Jagannath Temple Managing Committee is lacking conscientious application of mind and the decision is tainted with whims.

6. While Sri Satyabrata Mohanty, learned Additional Government Advocate for the opposite party No.1 supported the arguments of Sri Subrat Satpathy, Advocate for the opposite party No.2, the latter made valiant attempt to sustain the Order dated 07.02.2020 passed in connection with the petition under Section 5 of the Limitation Act, 1963, filed by the Shri Jagannath Temple Managing Committee showing the date of knowledge of ex parte judgment and decree dated 06.07.1994 passed in TS No.191 of 1992 by the Civil Judge, Senior Division, Puri as “10.09.2019”, i.e.,

"“when Ranjan Kumar Sahu gave an application to the Collector-cum-District Magistrate, Puri on 09.09.2019 not to demolish the house standing on the suit land and not to evict him from the suit property”. It is, therefore, submitted that such fact having come to the knowledge on 10.09.2019, the Shri Jagannath Temple Managing Committee sprung into action by taking steps to obtain certified copy of the ex parte judgment of the learned trial Court and file appeal under Section 96 of the CPC. The appeal filed on 21.09.2019, being registered as RFA No.60 of 2019, the learned District Judge, Puri was justified by applying his judicious discretion in favour of Shri Jagannath Temple Managing Committee-opposite party No.2 and seemly condoned the delay while considering that,

i. The interest of the deity, being perpetual minor, is required to be protected at any cost;

ii. While so, the apparent jurisdictional error committed by the Civil Judge, Senior Division, Puri while passing ex parte judgment and decree on 21.06.1994 goes to the root of the matter rendering the same void being invalid and inoperative."

6.1. Amplifying further, Sri Subrat Satpathy, learned Advocate for the Shri Jagannath Temple Managing Committee-opposite party No.2 submitted that the pertinent question of law touching the jurisdiction of the learned Civil Judge, Senior Division, Puri that the ex parte judgment and decree manifestly “barred under Section 39 of the Odisha Estates Abolition Act” and “OEA Claim Case No.588 of 1974 was pending before the OEA Collector, Puri”. It is submitted that ultimately the land (property in question) was settled in favour of Shri Jagannath Temple Managing Committee-opposite party No.2 and rent has been paid. The learned District Judge, Puri being apprised of such pertinent and correct factual position coupled with sound legal status of the judgement and decree, no infirmity in application of his discretion in favour of the opposite party No.2 could be imputed and the order condoning the delay in filing appeal needs no interference.

6.2. It is made clear by Sri Subrat Satpathy, learned Advocate that no limitation would apply to question the void and invalid judgment in appeal particularly when the same is passed without jurisdiction and that too during the pendency of OEA Claim Case before the OEA Collector by the time judgment is passed by the Civil Judge, Senior Division, Puri. Another significant consideration which the learned Civil Judge failed to keep in view is that in the year 1952, the Odisha Hindu Religious Endowments Act, 1939 or the Odisha Hindu Religious Endowments Act, 1952 was in vogue, the provisions of which contemplated that Raja of Puri could not have alienated the property of the Lord Shri Jagannath without the approval of the Commissioner of Endowment.

6.3. There being justifiable reason for the learned District Judge, Puri to condone the delay, inter alia on the ground that the opposite party No.2 had two courses open to question the ex parte judgment and decree passed in TS No.191 of 1992. In view of Biranchi Narayan Kuanr Vrs. Khetra Rana, 2019 (II) CLR 688, being rendered following Bhanu Kumar Jain Vrs. Archana Kumar, (2005) 1 SCC 787 = 2004 Supp.6 SCR 1104, that even after dismissal of petition under Order IX, Rule 13, recourse to Section 96 read with Order XLIII, Rule 1 of the CPC can be had.

6.4. It is, therefore, vehemently contested by Sri Subrat Satpathy, learned Advocate for the opposite party No.2 that no jurisdictional error has been committed by the learned District Judge, Puri in condoning the delay in filing appeal under Section 96 read with Order XLIII of the CPC considering the cause of action for preferring said appeal, being RFA No.60 of 2019, arose on 10.09.2019, i.e., the date of knowledge about the judgment and decree dated 21.06.1994 when the petitioner herein posited not to demolish house standing on the property in question and evict him from the suit property.

Analysis with discussions:

7. To appreciate the rival contentions and arguments, it does require this Court to take note of reasons ascribed by the opposite party No.2 in the petition under Section 5 of the Limitation Act, 1963, for condonation of delay in filing appeal under Section 96 of the CPC.

7.1. The grounds taken by the opposite party No.2 in the application for condonation of delay in paragraphs 1(a) to 1(e) are as follows:

“(a) That the final Hal R.O.R. is published in the name of Sri Jagannath Temple before filing of T.S. No.191 of 1992 to the knowledge of Respondent still holds good, valid and effective till today and appellant through its Administrator has been paying rent to State. The rent of the year 2019 is also paid.

(b) That no notice U/s.60 C.P.C. was served on the Administrator prior to two months from filing of

T.S. No.191 of 1992. Administrator is a public officer and entitled for a public notice since he is sued. Even if Sec.80 C.P.C. notice was not served. No personal notice was also sent by respondent (Plaintiff of said suit).

(c) That after the judgment passed by learned lower court directing to correct the Hal R.O.R. in order to bring to the name of the plaintiff of said suit who is respondent in this appeal, no step is taken as yet to mutate the R.O.R. So the Court‟s order has not yet been complied. Hal R.O.R. still stands in name of the appellant.

(d) That the service of summon of the said T.S. No.191/92 was not served personally on the then Administrator of the Temple. The certified copy of order sheet of C.S. No.191 of 1992 dated 11.04.1984 reveals the S.R. of summons back against defendant on personal service which appears not correct since all the summons will be received by an authorised clerk on behalf of Administrator and he will put up the same before Administrator, Puri further orders. This being the practice of the Temple Administrator service of notice personally on Administrator appeared to be lawful and suspicious.

(e) That entire judgment is void and since not acted upon there is no occasion to know about the case by Management of temple committee from time to time.”

7.2. The Respondent No.1, the present petitioner, while filing objection to the aforesaid application for condonation of delay before the learned District Judge, Puri in R.F.A. No.60 of 2019, in paragraphs 3 to 7 stated as follows:

“3. That the allegations made in Paragraph (a) of the delay condonation petition is not admitted to be correct. The Hal settlement R.O.R. was finally published in the year 1989 in the name of Sri Jagannath Mahaprabhu Bije Srikhetra Marfat Temple Managing Committee under “Bebandabasta status” under Khata No.322 of mouza: Chudanga Sahi, Unit No.18. The said Khata consists of 19 (Nineteen plots) which includes suit plot No.513, Area: Ac.0.034 dec. recorded under Gharabari Status with possession note in the name of Benga Dei, wife of Govinda Chandra Sahoo since the year 1956 onwards. This R.O.R. was filed in the lower Court in T.S. No.191 of 1992.

Sri Jagannath Temple filed O.E.A. (C) No.704 of 1989 in the court of Tahasildar Puri for settlement of fair and equitable rent in respect of the following properties, which includes the suit plot No.513. Mouza: Chudanga Sahi, Khata no.322, Plot no.286, 287, 288, 289, 323, 326, 325, 327, 328, 503, 504, 506, 509, 511, 512, 513, 549, 550, 505/686 Total 19 plots with a total area of Ac.2.442 dec.

After the aforesaid O.E.A.(c) Case was admitted notices and proclamations were invited from General Public in the year 1990 as well as in the year 1991 and the present Respondent no.1 namely Ranjan Kumar Sahoo filed an objection under Sec-8 (A-4) of the O.E.A. Act and basing upon the objection and after spot enquiry and after following due procedure of law the learned Tahasildar vide its order dated 09.04.1999 allowed the claim case IN PART i.e. out of 19 plots only 18 plots was settled in the name of Sri Jagannath Temple and so far as the suit plot is concerned the claim was DISALLOWED. The said order of the O.E.A. Collector is final and binding on the Appellant/Petitioner as no Appeal nor any revision was preferred challenging the rejection of the claim application so far as the suit plot no.513 is concerned Section-39 of O.E.A. Act bars contrary submission in count. On the other hand basing upon the order of the O.E.A. Collector the 18 plots were separately mutated under sthitiban Khata no.298/35 with a total area of Ac.2.408 dec. in place of Ac.2.442 dec. The suit plot continued to remain in the original Khata no.322 and it is still in the said Khata and it is really strange and surprising as to how only the suit plot 513 has been settled in O.E.A.(C) No.585/1974 in the name of the temple under sthitiban status as revealed from the document filed by the petitioner. The recording itself is suspicious for the simple reason when the suit khata contained 19 plots, then how is it for one single plot a claim case was filed in the year 1974 excluding 18 other plots, then again how is it for all the 19 plots once again O.E.A.(c) no.704/1989 was filed in the year 1989. If at all the suit plot was settled in O.E.A.(c) no.585/1974 then how is it the very same plot was once again applied for settlement of fair and equitable rent in the year 1989. Apart from that temple has never filed any claim case from 1974 till 1988 as the matter was sub-judice before the Hon‟ble High Court and before the Hon‟ble Apex Court and it was only after Supreme Court‟s decisions in the year 1988 all O.E.A. cases were filed by Sri Jagannath Temple therefore the net copy R.O.R. for Khata no.322 filed by Appellant and the rent receipts of the year 2019 are not genuine documents.

4. That the allegations made in Paragraph 1(b) of the condonation petition is concerned it is submitted that the averments are not correct. Notice U/s.80 C.P.C. has been served upon the defendants prior to filing of the suit and in the present case in Para- 18 of the plaint of T.S. No.191/1992, it is clearly pleaded that Notice U/s.80 C.P.C. was sent to the defendants on 28.01.1992 by registered post with A.D. and the same was received by both the defendants on 29.01.1992 and the suit was filed on 23.06.1992 i.e. long after expiry of the period of two months and Sec-80(1) clearly states that a statement regarding service of 80 C.P.C. notice shall be pleaded in the plaint, which has been clearly pleaded in Para-18 of the plaint. The plaint would not have been admitted without verification of the notices U/s-80 C.P.C. Therefore no fault can be found with the plaintiff of the said suit. It is false to say that no notice was served upon the defendants prior to two months of filing of the suit. The office copy of both the notices along with the original registration receipt and A.D. were filed along with the plaint and only thereafter the plaint was admitted and notices were issued to both the defendants.

5. That the allegations made in 1(c) of the condonation petition are not correct in its entirety. It is correct to say no separate mutation case was filed by the present Respondent no.1 but in view of his objection filed in O.E.A. claim case No.704/1989 before the Tahasildar Puri and his prior objection having been allowed by the Tahasildar after the judgment whereby the O.E.A. claim so far as the suit plot is concerned it was rejected and consequent upon the rejection mutation the name of the present Respondent no.1 in respect of the suit plot is official duty of the Tahasildar but it has not been done inadvertently but it cannot be said that no steps were taken by the Respondent no.1 in this regard. The plea of the Appellant that the R.O.R. stands in its name is also not correct for the simple reasons that once the claim having been rejected HAL R.O.R. still recorded in the name of the Appellant in sthitiban status is without jurisdiction.

6. That so far the allegations made in 1(d) of the condonation petition is concerned they are all false, frivolous and specifically denied. Order Sheet of T.S. No.191/1992 dated 02.02.1994, 21.03.1994 and 11.04.1994 clearly reflects that on 02.02.1994 summons were set to the defendants on both the ways. Order sheet dated 21.03.1994 clearly reflects that S.R. against defendant no.1 and 2 are back and order sheet dated 11.04.1994 reflects that S.R. of summons against the defendants were served on personal service and they being Government officials service of summons against them are accepted as sufficient. Both of them were found absent on call and no steps were taken hence they were sent exparte. The official acts are presumed to be correct and mere allegations regarding none service of summons is not acceptable nor the presumption arising out of the Court record can be ignored on such bald allegations. In this regard the order sheet dated 29.04.1994 and 09.05.1994 may kindly be seen. Order sheet dated 29.04.1994 reflects that the affidavit evidence filed by the plaintiff after granting of permission under Order-19, Rule-1 C.P.C. on 18.04.1994 was put up and the matter was heard and the same was accepted and the suit was posted o 11.05.1994 for exparte judgment. On 09.05.1994 the defendants filed a petition for time to file W.S., which clearly shows that the present Appellant was fully aware about the suit and they have also appeared on 09.05.1994. In the said suit but their appearance was ignored by the Court as because the matter had already been posted for exparte judgment and there was no stage for appearance or to file any W.S. once the hearing has been concluded and the matter was posted for judgment. This is another circumstance to show that the present Appellant was fully aware about the suit and its proceeding.

It is to mention here that the present Appellant was aware about the suit and its result as Misc. Case No.103/1996 was filed by the Appellant before the learned Subordinate Judge Puri against the present Respondents and the said Misc. Case was filed on 12.04.1996 under Order-9 Rule-13 read with Sec-151 C.P.C. with a prayer to set aside the exparte decree dated 21.06.1994. The misc. case was filed after expiry of one year ten months from the date of exparte decree. The order dated 02.01.1997 of Misc. Case No.103/1996 indicates that office note was ready and the matter was posted to 24.02.1997 when the petitioner to take steps against the opposite parties and for consideration of limitation petition.

From 24.02.1997 twenty dates were adjourned i.e. up to 11.08.2000 for filing requisites for issuance of summons to the opposite parties and for consideration of limitation petition but the petitioner i.e. Sri Jagannath temple did not take any steps for issuance of notice against the opposite parties and ultimately the matter was posted to 25.09.2000 on which date no steps were taken from the side of the petitioner and ultimately the Misc. Case No.103 of 1996 was dismissed.

The present Appellant himself being the petitioner and for its deliberate negligence in prosecuting its case the Misc. case was dismissed and this fact has been totally suppressed and not brought to the notice of the Court either in the present Appeal or in the delay condonation petition. This deliberate suppression of vital fact amounts to playing fraud upon the Court. The filing of an application under Order-9, Rule-13 C.P.C. debars filing of an Appeal supporting the earlier action.

It is totally false and misconceive to say that the administrator never receives any Court notice but it is only his office receives the same stands to no reason at all and the order sheet of the Court relating to a fact, which occurred in the year 1993- 1994 cannot be ignored on such statement. It be mention here that Sri Jagannath Temple is a Government organization having its full-fledged office wherein there are Senior Administrative Officers and there are number of officers the District Collector is also a part of the Temple Administration. The temple office itself constitutes a separate legal department with well equipped, having law officers, law assistant, Senior Advocates, Law Clerks etc. and when a full- fledged office is running with well equipped machienries having fully acquainted with Court matters.

7. That the allegations made in Paragraph 1(e) of the petition are all false, frivolous and specifically denied. It is false and misconceives to say that the entire judgment is void and it has not been acted upon for which the temple did not know about the Original suit. The facts narrated beforehand clearly depicts that the present Appellant was fully aware about the judgment passed in the year 1994 and thereafter steps have been taken to set aside the ex parte decree but they have became unsuccessful due to their gross negligence and in order to avoid their own acts they have taken a false plea that they were not aware about the suit, which cannot be accepted at all in view of the facts narrated beforehand.”

7.3. What is transpired from the contents of petition for condonation of delay and the objection raised by the opponent is that the opposite party No.2 has suppressed material fact by not disclosing about dismissal of petition for setting aside the judgment of the learned trial Court under Order IX, Rule 13 of the CPC. Nothing is placed on record to show that for the default of erstwhile Administrator(s) who allowed the judgment and decree to remain intact till 2019, the Shri Jagannath Temple Managing Committee had/has taken action against him/them. There seems no explanation, much less plausible explanation, proffered by the opposite party Nos.1 and 2 as to why after dismissal of petition under Order IX, Rule 13, CPC way back in the year 2000 no step has been taken.

7.4. The learned District Judge, Puri after hearing the counsel for the respective parties vide Order dated 07.02.2020 allowed the application for condonation of delay and admitted the appeal for hearing on merit. The learned District Judge has discussed the merit of the appeal itself by observing that admittedly the land involved in the suit and the appeal, originally belonged to Lord Jagannath under the Marfatdari of Gajapati Maharaja Ramchandra Dev having a status of intermediary with Amrutamonohi kisam. The claim of the petitioner in the original suit was that the Gajapati Maharaja leased out the property to Smt. Benga Dei, the maternal grandmother of the plaintiff and salami and rent was fixed at Rs.4,000/- and Rs.17.55 paise respectively and after full payment of salami possession of the suit property was delivered to her and the Raja of Puri executed a document in favour of the grandmother of the plaintiff. While in possession, said Benga Dei executed a deed of gift in favour of the present petitioner on 06.02.1980 and delivered possession of the suit property to the plaintiff and since then the plaintiff is in possession of the suit property. During the settlement in the year 1962 preliminary record was prepared in the name of Benga Dei. The name of Benga Dei was recorded in the remarks column on misconceptions of law and the Administrator of Shri Jagannath Temple filed a petition before the Settlement Officer against the plaintiff on 24.01.1986 vide Suo motu Appeal Case No.4912 of 1988 which was dismissed on 08.03.1988 on contest. Taking advantage of the wrong recording of the Hal Record-of-Right the local Revenue Authorities did not receive rent since 1990 and thereafter the suit was filed. Since the opposite party No.2 did not contest the suit the same was decreed ex parte in favour of the plaintiff/petitioner. Thereafter, Miscellaneous Case under Order IX, Rule 13 of the CPC vide Misc. Case No.103 of 1996 was filed, which came to be dismissed for non-prosecution in 2000.

7.5. Notwithstanding such fact was taken into consideration with further observation that “the reason best known to the Temple Authority and the State Authorities” as to how they allowed the opposite party No.1 to obtain a decree in his favour ex parte by not contesting the suit and the State Authorities and the Temple Authorities failed to discharge their obligation, the learned District Judge, Puri jumped to the conclusion that “the present appeal has been preferred challenging the judgment and decree obtained as void and obtained by fraud”. Careful reading of the Order dated 07.02.2020 would reveal that the learned District Judge, Puri has not dealt with the objection dated 15.11.2019 filed by the petitioner in proper perspective. The objections have not been replied by learned District Judge and no material has been discussed to hold that the judgment and decree have been obtained by practising fraud. Entire Order dated 07.02.2020 would show that the learned District Judge was satisfied as to the lackadaisical manner of the Shri Jagannath Temple Managing Committee as well as the Collector, Puri; yet he has held that judgment of trial Court was obtained by practising fraud (nothing is spelt out “by whom”), which warrants condonation of delay for admission of appeal to be heard on merit.

7.6. Hence, this civil revision petition has been filed by the petitioner challenging the aforesaid Order dated 07.02.2020.

Allegation as to element of “fraud”:

8. With respect to “fraud”, the following judgments are noteworthy.

8.1. Rattan Singh Vrs. Nirmal Gill, (2020) 12 SCR 422 = 2020 INSC 641:

“41. The requirement regarding shifting of burden onto the defendants had been succinctly discussed in Anil Rishi Vrs. Gurbaksh Singh, (2006) 5 SCC 558, wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. The relevant extract of the said decision is reproduced as thus:

„8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:

„101. Burden of proof.—

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.‟

9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.

10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.

11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.

***

14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.

15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words “active confidence” indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.

16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant-appellant, the burden would lie on him as he had alleged fraud. The trial court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.

***

72. The plaintiff asserted that she had attended a family function in February, 2001 and in the said function, while she was interacting with one Rustam Singh, he disclosed that the defendants have sold a portion of the joint lands. Subsequently, she made enquiries in that regard. As such, she had inspected the jamabandis of the joint lands and thereupon got knowledge about the existence of the disputed documents. Immediately upon discovery of the said documents, she filed the suits. The suits are filed within 3 years from the date of acquiring knowledge and are thus within limitation.

73. To support her case, the plaintiff relied upon the testimonies of DW3 and defendant No. 4, wherein it had come on record that the plaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh were present in the aforesaid function. Nirmal Gill in her testimony as PW8 had deposed that there was a family gathering in December, 2000 whereat the plaintiff enquired from defendant Nos. 5 and 6 about the status of mutation, who informed that the mutation could not be effected until the encroachments on the lands at Jalandhar and Premgarh are cleared. Thereafter, in February 2001, there was another family gathering wherein Rustam Singh had passed on the said information to the plaintiff in her presence.

74. The trial Court, while examining the issue of limitation, had opined that when the documents were proved to have been executed by the plaintiff in 1990, it ought to have been challenged within 3 years of its execution. It was further observed that when a specific plea is taken that the plaintiff acquired knowledge about fraud recently in a family function, she was obliged to examine such person who disclosed the information and the plaintiff failed to do so. Notably, the date of the family function had been wrongly mentioned by the trial Court as December, 2001. Paragraphs 94 and 98 of the trial Court‟s judgment are reproduced below:

„94. I find merits in these arguments advanced by Learned Defence Counsel because when the plaintiff is taking a specific plea that in some family function in December, 2001 which she as well as her daughter attended, this thing came to their knowledge that the power of attorney has been forged and on the basis of that Harcharan Kaur had executed the sale deeds of the share of plaintiff, then in those circumstances the plaintiff was required to examine that person who disclosed that information to the plaintiff. But the plaintiff has not examined any that person. ***

98. In my opinion, when the plaintiff is specifically stating to have received the information in some family function, then she was required to examine that person from whom she received the information. But no such evidence is coming forward. Moreover, when the Court has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990,

03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff.‟

75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance.

76. In contrast, the High Court had noted that the factum of the family function and plaintiff‟s presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Court‟s judgment is set out hereunder:

„*** Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiff‟s case is that she came to know about the fraud being perpetuated by her own step brothers and sister-in-law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncle‟s son (Taya‟s son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff.***‟

77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 1963. The said provision reads as under:

„17. Effect of fraud or mistake.—

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. ***‟

78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision.

79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non- existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court— that the documents were executed by the plaintiff— belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard.”

8.2. Commissioner of Customs (Preventive) Vrs. M/s. Aafloat Textiles (I) Pvt. Ltd., (2009) 2 SCR 490:

“9. „fraud‟ means an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression „fraud‟ involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla Vrs. Delhi Administration, 1963 Supp.2 SCR 585 and Indian Bank Vrs. Satyam Febres (India) Pvt. Ltd., (1996) 5 SCC 550.

10. A „fraud‟ is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu Vrs. Jagannath, (1994) 1 SCC 1).

11. „Fraud‟ as is well known vitiates every solemn act.

*** Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh Vrs. Savitri Devi and Ors., (2003) 8 SCC 319.

12. *** Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) Vrs. M/s. Shaw Brothers, (1992) 1 SCC 534).

13. In that case it was observed as follows: „Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton‟s sorcerer, Comus, who exulted in his ability to, „wing me into the easy-hearted man and trap him into snares‟. It has been defined as an act of trickery or deceit. In Webster‟s Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtain an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black‟s Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury‟s Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry Vrs. Peek, (1886-90) ALL ER Rep 1 = (1889) 14 A 337 (HL) what constitutes fraud was described thus: (All ER p. 22 B-C) „Fraud is proved when it is shown that a false representation has been made

(i) knowingly, or

(ii) without belief in its truth, or

(iii) recklessly, careless whether it be true or false.‟

14. This aspect of the matter has been considered by this Court in Roshan Deen Vrs. Preeti Lal, (2002) 1 SCC 100; Ram Preeti Yadav Vrs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311, Ram Chandra Singh Vrs. Savitri Devi, (2003) 8 SCC 319 and Ashok Leyland Ltd. Vrs. State of TN. and Another (2004) 3 SCC 1.

15. Suppression of a material document would also amount to a fraud on the court. (See, Gowrishankar Vrs. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310 and S.P. Chengalvarava Naidu Vrs. Jagannath, (1994) 1 SCC 1.

16. „Fraud‟ is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav Vrs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311.

17. In Lazarus Estate Ltd. Vrs. Beasley, (1956) 1 QB 702, Lord Denning observed at pages 712 & 713,

„No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.‟

In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722)

18. These aspects were highlighted in the State of Andhra Pradesh and Anr. Vrs. T. Suryachandra Rao, 2005 (5) SCALE 621 = (2005) 6 SCC 149 and Bhaurao Dagdu Paralkar Vrs. State of Maharashtra and Ors., (2005) 7 SCC 605).”

8.3. United India Insurance Co. Ltd. Vrs. Rajendra Singh, (2000) 3 SCC 581 = AIR 2000 SC 1165:

“Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and it is a pristine maxim, which has never lost its temper over all these centuries.”

8.4. District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram Vrs. M. Tripura Sundari Devi, (1990) 3 SCC 655; Union of India Vrs. M. Bhaskaran, 1995 Supp (4) SCC 100; Vice- Chairman, Kendriya Vidyalaya Sangathan Vrs. Girdharilal Yadav, (2004) 6 SCC 325; State of Maharashtra Vrs. Ravi Prakash Babulalsing Parmar, (2007) 1 SCC 80; Himadri Chemicals Industries Ltd. Vrs. Coal Tar Refining Company, (2007) 8 SCC 110 = AIR 2007 SC 2798; and Mohammed Ibrahim Vrs. State of Bihar, (2009) 8 SCC 751:

"Dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud."

8.5. Harjas Rai Makhija Vrs. Pushparani Jain, (2017) 2 SCC 797:

“18. During the course of submissions, it was contended on behalf of Makhija that it is a settled proposition of law that a decree obtained by playing fraud on the court is a nullity and that such a decree could be challenged at any time in any proceedings. Reliance was placed on A.V. Papayya Sastry Vrs. State of A.P., (2007) 4 SCC 221. This proposition is certainly not in dispute.

19. The learned counsel also placed reliance on Union of India Vrs. Ramesh Gandhi, (2012) 1 SCC 476 which reads as under:

„27. If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the court by not disclosing the necessary facts relevant for the adjudication of the controversy before the court is impermissible. From the above judgments (S.P. Chengalvaraya Naidu Vrs. Jagannath, (1994) 1 SCC 1; A.V. Papayya Sastry Vrs. State of A.P., (2007) 4 SCC 221.), it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest.‟

20. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point.” Sastry Vrs. State of A.P., (2007) 4 SCC 221.

8.6. In Yeswant Deorao Deshmukh Vrs. Watchand Ramchand Kothari, AIR 1951 SC 16 = 1950 SCC 766, the observation runs as follows:

“*** Rules of equity have no application where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise. While the Courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose.”

8.7. Conspectus of the above decisions is that to constitute “fraud” there must be intent to deceive. When an allegation of fraud is made, it must be enquired into. Enquiry would necessarily mean granting reasonable opportunity of hearing to the parties committing fraud. Evidence must be led and thereafter fraud must be proved. No conclusion of fraud can be drawn on mere allegation and by way of inference. Section 5 of the Limitation Act, 1963:

9. In consideration of petition for condonation of delay under Section 5 of the Limitation Act, 1963, discretion is involved.

9.1. Section 5 of the Limitation Act, 1963, dealing with “extension of prescribed period in certain cases” stands as follows:

“Any appeal or any 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.

Explanation.—

The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”

9.2. It is reported in the decision of Privy Council in Montreal Street Railway Company Vrs. Normandin, (1917) AC 170 that:

“*** The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., page 596 and the following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.”

9.3. The aforesaid observation has also been followed by the Hon‘ble Supreme Court in L. Hazari Mal Kuthiala Vrs. ITO, (1961) 41 ITR 12 (SC) = AIR 1961 SC 200.

9.4. In Bhavnagar University Vrs. Palitana Sugar Mill P. Ltd. AIR 2003 SC 511 it has been observed that:

“23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.”

9.5. In “Crawford on the Construction of Statutes” at page 516, it is stated that,

“The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.”

9.6. The expression “satisfies the Court” employed in Section 5 of the Limitation Act has significance.

“Satisfaction” before completion of the proceedings under the Act is a condition precedent for the exercise of jurisdiction. It is the satisfaction of the Court in the course of the proceedings regarding the delay in approaching the Court with sufficient reason, which constitutes the basis and foundation of the proceedings for consideration of condonation of delay. There must be something which shows from the record itself that in the course of the proceedings the Court was satisfied that there was sufficiency of reason for not approaching the Court in stipulated period and, therefore, it is a case in which the appeal deserves to be admitted for hearing on merit. To be satisfied with a state of things means to be honestly satisfied in one‘s own mind. Satisfaction is essentially a condition of the mind. It means that there is a substantial ground for the conclusion on the material available that the party against whom it is sought to bring the proceedings has obtained the judgment and decree by practising fraud way back in 1994. The phrase 'satisfied‘ means, makes up its mind; actual persuasion; a mind not troubled by doubt or a mind which has reached a clear conclusion."

9.7. It is well-nigh settled that where the word 'may‘ shall be read as 'shall‘ would depend upon the intention of the Legislature and it is not to be taken that once the word 'may‘ is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the provisions is not frustrated. Regard can be had to Mohan Singh Vrs. International Airport Authority of India, (1997) 9 SCC 132 as referred to in Sarla Goel Vrs. Kishan Chand, (2009) 7 SCC 658, wherein the Hon‘ble Supreme Court of India while dealing with the intention of the Legislature to use the word 'may‘ or 'shall‘ observed in paragraph 17 as follows:

“The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word „shall‟ or „may‟ depends on conferment of power. In the present context, „may‟ does not always mean „may‟. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In „Craise on Statute Law‟ (7th Edn.) it is stated that the Court will, as a general rule presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that Legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks the achieve. Therefore, it is necessary to ascertain the intention.

The word „shall‟ is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of Court to try to get at the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under Consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the Legislature and not always upon the language in which the intent is couched. The meaning and intention of the Legislature would govern design and purpose the Act seeks to achieve. In „Sutherland Statutory Construction‟ (3rd Edn) Volume I at page 81 in paragraph 316, it is stated that although the problem of mandatory and directory legislation is a hazard to all Governmental activity, it is peculiarly hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, the variation from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the delegation. In „Crawford on the Construction of Statutes‟ at page 516, it is stated that: The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.”

9.8. The use of the word 'may‘ indicates that the power to admit the appeal or application after the limitation period has expired lies within the discretion of the Court. It is not an automatic right, and the Court can choose to condone or reject the delay depending on the circumstances of the case. 'May‘ does not impose an obligation on the Court to condone the delay. It gives the Court flexibility to assess the sufficiency of the cause for the delay on case-to-case basis.

9.9. In Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., (1962) 2 SCR 762 it has been succinctly stated:

“Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause „within such period‟”

***

In construing Section 5•it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light, heartedly disturbed. The other consideration which cannot be-ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna Vrs. Chattappan, 1890 ILR 13 Mad 269:

„Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in•which judicial power and discretion ought to be exercised upon principles which are well understood; the words „sufficient cause‟ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.‟

Now, what do the words „within such period‟ denote It is possible that the expression „within such period‟ may sometimes mean during such period. But the question is: Does the context in. which the expression occurs in Section 5 justify the said interpretation If the Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which Section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeal on any day during the said period and so prima facie it appears unreasonable that when the delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of Section 5. The context seems to suggest that „within such period‟ means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under Section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression „within such period‟ means during such period would, in our opinion, be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error taking the view that the failure of the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party‟s illness.

***

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. ***”

9.10. The discretionary exercise of power amounts to something that is not compulsory, but it is left to the discretion of the person or authority involved, such as a discretionary grant. It is opposite to “mandatory”. Therefore, “discretionary” is a term which involves an alternative power, i.e., a power to do or refrain from doing a certain thing. In other words, it would be power of free decision or choice within certain legal bounds.

9.11. Necessity, thus, arises to state from K.K. Gopalan & Co. Vrs. Assistant Commissioner (Assessment), (2000) 118 STC 111 (Ker), that 'discretion‘ means use of private and independent thought. When anything is left to be done according to one‘s discretion the law intends it to be done with sound discretion and according to law. Discretion is discerning between right and wrong and one who has power to act at discretion is bound by rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances imports the exercise of judgment, wisdom and skill as contra-distinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice or Tribunal or quasi-judicial body, it means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful but legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to choose between alternative courses of action. It is not unconfined and vagrant. It is canalized within banks that keep it from overflowing.

9.12. In S.P. Road Link Vrs. State of Tripura, (2006) 144 STC 380 (Gau) reference has been made to Kumaon Mandal Vikas Nigam Ltd. Vrs. Girja Shankar Pant, (2001) 1 SCC 182 to observe that “discretion” means when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.

9.13. The following observations made in Lanka Venkateswarlu Vrs. State of Andhra Pradesh, (2011) 3 SCR 217 are pertinent to be referred to:

“21. In the case of Sardar Amarjit Singh Katra (dead) by LRs Vrs. Pramod Gupta (dead) by LRs., (2002) Suppl.5 SCR 350 = (2003) 3 SCC 272, this Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. In the case of Mithailal Dalsangar Singh Vrs. Annabai Devram Kini, (2003) 10 SCC 691, this Court again reiterated that inasmuch as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:

„The Courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the• indulgence of the court.‟

22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (dead) Vrs. Jagdish Singh, (2010) 8 SCR 597 = (2010) 8 SCC 685 as follows:

„25. We may state that even if the term „sufficient cause‟ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of „reasonableness‟ as it is understood in its general connotation.

***

26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.‟

24. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.

25. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the Government pleaders. The displeasure of the Court is patently apparent from the impugned order •itself. In the opening paragraph of the impugned order the High Court has, rather sarcastically, dubbed the Government pleaders as without merit and ability. Such an insinuation is clearly discernable from the observation that „This is a classic case, how the learned Government pleaders appointed on the basis of merit and ability are discharging their function protecting the interest of their clients.‟ Having said so, the High Court, graphically narrated the clear dereliction of duty by the concerned Government pleaders in not pursuing the appeal before the High Court diligently. The High Court has set out the different stages at which the Government pleaders had exhibited almost culpable negligence in performance of their duties. The High Court found the justification given by the Government pleaders to be unacceptable. Twice in the impugned order, it was recorded that in the normal course, the applications would have been thrown out without having a second thought in the matter. Having recorded such conclusions, inexplicably, the High Court proceeds to condone the unconscionable delay.

26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as „liberal approach‟, „justice oriented approach‟, „substantial justice‟ cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst consideiing applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.”

9.14. May it is in general connotation the word “discretion” means 'prudence‘, 'individual choice or judgment‘, 'power of free decision‘ and 'freedom to act according to one‘s own judgment‘, but in legal parlance, it is confined to the exercise of freedom to act; squeezes one‘s individual choice. It prescribes direction to the authority upon whom discretion is vested to act in conformity with statutory provisions and rule of law. It follows that the judgment of the delegatee of power, who is vested with discretion, is his own application of reasonable, conscience mind and thought unguided and uncontrolled by opinion/judgment of others. Discretion is the power delegated specially or implied from the wordings of the statute is oft coupled with responsibility and duty.

9.15. Conspectus of litany of decisions rendered by different Courts indicates that “discretion” means use of private and independent thought. When anything is left to be done according to one‘s discretion the law intends it to be done with sound discretion and according to law. Discretion is discerning between right and wrong and one who has power to act at discretion is bound by rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances imports the exercise of judgment, wisdom and skill as contra-distinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice or Tribunal or quasi judicial body, it means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to choose between alternative courses of action.

It is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. [See, Kumaon Mandal Vikas Nigam Ltd. Vrs. Girja Shankar Pant, (2001) 1 SCC 182].

Showing sufficient cause:

10. The Courts through catena of decisions have expounded the conceptual understanding of “discretion” in exercise of power to condone the delay in preferring appeal being “satisfied” on the party seeking to admit the appeal to be heard on merit having shown “sufficient cause”.

10.1. In this regard, therefore, the interpretation of the expression “sufficient cause” as found in the provisions of Section 5 of the Limitation Act has significant bearing on the question that is involved in the instant case.

10.2. It needs to be discussed the connotation of “good cause” vis-à-vis “sufficient cause”. In Arjun Singh Vrs. Mohindra Kumar, (1964) 5 SCR 946, these two terms have been considered as follows:

“Before proceeding to deal with the arguments addressed to us by Mr. Setalvad— learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words „good cause‟ for non-appearance in Order IX, Rule 7 and „sufficient cause‟ for the same purpose in Order IX, Rule 13 as pointing to different criteria of „goodness‟ or „sufficiency‟ for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of „good cause‟ and „sufficient cause‟. We are unable to conceive of a „good cause‟ which is not „sufficient‟ as affording an explanation for non-appearance, nor conversely of a „sufficient cause‟ which is not a good one and we would add that either of these is not different from „good and sufficient cause‟ which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a „good cause‟ is complied with on a lesser degree of proof than that of „sufficient cause‟ and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the court finds in the first proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later, where the standard of proof of that matter is, if anything, higher.”

10.3. Observation of Hon‘ble Supreme Court in State of Madhya Pradesh Vrs. Ramkumar Choudhary, 2024 SCC OnLine SC 3612 = 2024 INSC 932 is as follows:

“5. The legal position is that where a case has been presented in the Court beyond limitation, the petitioner 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 Majji Sannemma Vrs. Reddy Sridevi, (2021) 9 SCR 476 = 2021 INSC 909, it was held by this Court 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 was also made to the decision of this Court in Ajay Dabra Vrs. Pyare Ram, (2023) 1 SCR 449 = 2023 INSC 90 wherein, it was held as follows: „13. This Court in the case of Basawaraj Vrs. 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 summarised 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 remained inactive, there cannot be a justified 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 tantamounts to showing utter disregard to the legislature.‟

14. Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant.”

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.”

10.4. The meaning of 'sufficient‘ is 'adequate‘ or 'enough‘, inasmuch as may be necessary to answer the purpose intended. Therefore, word 'sufficient‘ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. 'Sufficient cause‘ means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been 'not acting diligently‘ or 'remaining inactive‘. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. While deciding whether there is sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. “Sufficient cause” is, thus, the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application. [Refer: Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., AIR 1962 SC 361 = (1962) 2 SCR 762; Lonard Grampanchayat Vrs. Ramgiri Gosavi, AIR 1968 SC 222; Surinder Singh Sibia Vrs. Vijay Kumar Sood, (1992) 1 SCC 70; Orinental Aroma Chemical Industries Ltd. Vrs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459; Parimal Vrs. Veena, (2011) 3 SCC 545; Sudarshan Sareen Vrs. National Small Industries Corporation Ltd., 2013 SCC OnLine Del 4412; State of Bihar Vrs. Kameshwar Prasad Singh, (2000) 9 SCC 94; Madanlal Vrs. Shyamlal, (2002) 1 SCC 535; Davinder Pal Sehgal Vrs. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156; Ram Nath Sao Vrs. Gobardhan Sao, (2002) 3 SCC 195, Kaushalya Devi Vrs. Prem Chand, (2005) 10 SCC 127, Srei International Finance Ltd. Vrs. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95; Reena Sadh Vrs. Aniana Enterprises, (2008) 12 SCC 589].

10.5. “Sufficient cause” has to be construed as an elastic expression for which no hard-and-fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. [Ref.: G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54; A. Murugesan Vrs. Jamuna Rani, (2019) 20 SCC 803]. The Court, in its discretion, has to consider the 'sufficient cause‘ in the facts and circumstances of every individual case. Although in interpreting the words 'sufficient cause‘, the Court has wide discretion but the same has to be exercised in the particular facts of the case. See, Hira Sweets & Confectionary Pvt. Ltd. Vrs. Hira Confectioners, 2021 SCC OnLine Del 1823.

10.6. In Balwant Singh Vrs. Jagdish Singh, (2010) 8 SCR 597 the ingredients of “sufficient cause” for the purpose of condonation of delay has been discussed as follows:

“7. *** However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows „sufficient cause‟ for not preferring the application within the prescribed time. The expression „sufficient cause‟ commonly appears in the provisions of Order XXII, Rule 9(2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts.

***

8. In the case of P.K. Ramachandran Vrs. State of Kerala, (1997) 7 SCC 556 where there was delay of 565 days in filing the first appeal by the State, and the High Court had observed, „taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition". While setting aside this order, this Court found that the explanation rendered for condonation of delay was neither reasonable nor satisfactory and held as under:

„3. It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay.

4. That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12.5.1995 is:

„*** at that time the Advocate General‟s office was fed up with so many arbitration matters (sic) equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995.‟

5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub-Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is *** conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days.

6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.‟

10. Another Bench of this Court in a recent judgment of Katari Suryanarayana Vrs. Koppisetti Subba Rao, AIR 2009 SC 2907 again had an occasion to construe the ambit, scope and application of the expression „sufficient cause‟. The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and *** 2601 days in bringing the legal representatives on record was not found to be satisfactory. Declining the application for condonation of delay, the Court, while discussing the case of Perumon Bhagvathy Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321 in its para 9 held as under:

„11. The words „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 type of case. The words „sufficient cause‟ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.‟

15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:

„(i) The words „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 type of case. The words „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 dilatory tactics, want of bona tides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re- filing the appeal after rectification of defects.

(v) Want of „diligence‟ or „inaction‟ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. ***

16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.”

10.7. In the case of Pundlik Jalam Patil Vrs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it is observed as under:

“The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.”

10.8. The Hon‘ble Supreme Court of India investigated if “to condone, or not to condone” four days‘ delay, besides examining as to “whether or not to apply the same standard in applying the 'sufficient cause‘ test to all the litigants regardless of their personality” in Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107 = (1987) 2 SCR 387 and laid down the following dicta:

“The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on „merits‟. 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— that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on 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 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 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 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 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. 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 an even handed manner. There is no warrant for according a step-motherly treatment when the „State‟ is the applicant praying for condonation of delay. 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 more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression „sufficient cause‟. So also 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 to the approach which scuttles a decision on merits.”

10.9. Discussing the scope and discretion of the Court in condoning the substantial delay caused in filing appeal by the State in G. Ramegowda Major Vrs. Special Land Acquisition Officer, (1988) 2 SCC 142 the Hon‘ble Supreme Court of India observed as follows:

“15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.

16. The law of limitation is, no doubt, the same for a private citizen as for Governmental- authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But 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.

17. Therefore, in assessing what, in a particular case, constitutes „sufficient cause‟ for purposes of Section 5 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. Governmental 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 limits—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. In the opinion of the High Court, the conduct of the law-officers of the Government placed the Government in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law-officers. Lindley, M.R., in the In re: National Bank of Wales Ltd., LR 1899 2 Ch. 629 @ 673 observed, though in a different context: „Business cannot be carried on, upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them.‟

In the opinion of the High Court, it took quite sometime for the Government to realise that the law-officers failed that trust.

18. While a private person can take instant decision a „bureaucratic or democratic organ‟ it is said by a 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 impersonally.‟ ***”

10.10. In absence of showing deliberate delay as a dilatory tactic, the manner of use of discretion in favour of condonation of delay in filing appeal by the State machinery with due regard to 'sufficient cause‘ has been enumerated in N. Balakrishnan Vrs. M. Krishnamurty, (1998) 7 SCC 123 in the following terms:

“8. The Appellant‟s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

9. 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 criterion. Sometimes delay of the shortest range 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.

10. The reason for such a different stance is thus:

The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit.

During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words „sufficient cause‟ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vrs. Kuntal Kumari, AIR 1969 SC 575 = (1969) 1 SCR 1006 and State of West Bengal Vrs. The Administrator, Howrah Municipality, AIR 1972 SC 749 = (1972) 1 SCC 366.

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.”

10.11. While enunciating that pragmatism in justice oriented approach is to be shown by the Court having regard to the impersonal bureaucratic set up involved in red-tapism within reasonable limits of time, the Hon‘ble Supreme Court propounded to hold officer concerned personally responsible in the case of State of Haryana Vrs. Chandra Mani, (1996) 3 SCC 132 and the proposition of legal position stands thus:

“It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court— be it by private party or the State— are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even- handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the- buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay— intentional or otherwise— is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression „sufficient cause‟ should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day‟s delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.”

10.12. It is significant to notice the decision of the Hon‘ble Supreme Court of India rendered in the case of Sheo Raj Singh (deceased) through Legal Representatives Vrs. Union of India, (2023) 10 SCC 531 wherein while explaining the term “sufficient cause”, the nature of approach of the Court and the methodology in deciding the application for condonation of delay have been discussed with reference to earlier precedents. The said Court in the mentioned reported case held as follows:

“30. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to Courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial.

31. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the Courts must distinguish between an „explanation‟ and an „excuse‟. An „explanation‟ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an „explanation‟ from an „excuse‟. Although people tend to see „explanation‟ and „excuse‟ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real.

32. An „excuse‟ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an „excuse‟ would imply that the explanation proffered is believed not to be true.

***

Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher Courts for adjudication.

34. The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decisions in Mst. Katiji (supra), Ramegowda (supra), Chandra Mani (supra), Tehsildar (LA) Vrs. K.V. Ayisumma, (1996) 10 SCC 634 and State of Nagaland Vrs. Lipok AO, (2005) 3 SCC 752 were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. Vrs. Bherulal, (2020) 10 SCC 654 is one such decision apart from University of Delhi Vrs. Union of India, (2020) 13 SCC 745] which have not accepted Governmental lethargy, tardiness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above.

***

40. We can also profitably refer to State of Manipur Vrs. Koting Lamkang, (2019) 10 SCC 408 … where the same Bench of three Hon‟ble Judges of this Court which decided University of Delhi Vrs. Union of India, (2020) 13 SCC 745 was of the view that the impersonal nature of the State‟s functioning should be given due regard, while ensuring that individual defaults are not nit-picked at the cost of collective interest. The relevant paragraphs read as follows:

„7. But while concluding as above, it was necessary for the Court to also be conscious of the bureaucratic delay and the slow pace in reaching a Government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the Court felt that the delay in the appeal filed by the State, should not be condoned.

8. Regard should be had in similar such circumstances to the impersonal nature of the Government‟s functioning where individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by the State are lost for individual default, those who are at fault, will not usually be individually affected.‟

41. Having bestowed serious consideration to the rival contentions, we feel that the High Court‟s decision to condone the delay on account of the first respondent‟s inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of Governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.”

10.13. In Pathupati Subba Reddy (died) by Lrs. Vrs. The Special Deputy Collector (LA), (2024) 4 SCR 241 = 2024 INSC 286, having taken review of relevant earlier decisions, the principles for consideration of condonation of delay have been expounded in the following terms:

“6. The moot question before us is whether in the facts and circumstances of the case, the High Court was justified in refusing to condone the *** delay in filing the proposed appeal and to dismiss it as barred by limitation.

9. Section 3 of the Limitation Act in no uncertain terms lays down that no suit, appeal or application instituted, preferred or made after the period prescribed shall be entertained rather dismissed even though limitation has not been set up as a defence subject to the exceptions contained in Sections 4 to 24 (inclusive) of the Limitation Act.

***

12. In view of the above provision, the appeal which is preferred after the expiry of the limitation is liable to be dismissed. The use of the word „shall‟ in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions. Section 3 of the Act is peremptory and had to be given effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. In other words, it casts an obligation upon the Court to dismiss an appeal which is presented beyond limitation. This is the general law of limitation. The exceptions are carved out under Sections 4 to 24 (inclusive) of the Limitation Act but we are concerned only with the exception contained in Section 5 which empowers the Courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives „sufficient cause‟ for not preferring the appeal within the period prescribed. In other words, the Courts are conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish „sufficient cause‟ for not filing it within time. The said power to condone the delay or to admit the appeal preferred after the expiry of time is discretionary in nature and may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc.

13. It is very elementary and well understood that Courts should not adopt an injustice-oriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice.

***

17. It must always be borne in mind that while construing „sufficient cause‟ in deciding application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights.

***

26. On a harmonious consideration of the provisions of the law, as aforesaid, 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;

(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.”

10.14. In a recent case, being Union of India Vrs. Jahangir Byramji Jeejeebhoy (D) through his Lr., (2024) 4 SCR 76 = 2024 INSC 262, certain observations are made which are given as under with respect to a case where there was inordinate delay in filing appeal:

“24. In the aforesaid circumstances, we made it very clear that we are not going to look into the merits of the matter as long as we are not convinced that sufficient cause has been made out for condonation of such a long and inordinate delay.

25. It hardly matters whether a litigant is a private party or a State or Union of India when it comes to condoning the gross delay of more than 12 years. If the litigant chooses to approach the Court long after the lapse of the time prescribed under the relevant provisions of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned. ***

26. The length of the delay is a relevant matter which the Court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non- deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the Court must not start with the merits of the main matter. The Court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

27. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. We should not keep the „Sword of Damocles‟ hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants.”

10.15. It may be of benefit to have reference to Esha Bhattacharjee Vrs. Managing Committee of Raghunathpur Nafar Academy, (2013) 9 SCR 782, wherein the following principles are culled out:

“15. From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms „sufficient cause‟ should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose

the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

10.16. This Court in Radharaman Store Vrs. Odisha Sales Tax Tribunal, 85 (1998) CLT 657 = (1998) 108 STC 284 (Ori) held that,

“It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in apex Court— be it by private party or the State— are barred by limitation and apex Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merit. This position was elaborately stated by the apex Court in State of Haryana Vrs. Chandra Mani, (1996) 3 SCC 132 = (1996) 2 SCALE 820. ***

The factual backdrop and few relevant facts need to be noted. It is an accepted position that the file was endorsed to the Addl. S.R. for opinion on December 31, 1993, and he passed an order on March 30, 1994 for filing of the second appeal. No cause has been indicated as to why the Addl. S.R. took such a long time, and what transpired during that period. In fact no explanation whatsoever has been offered. Tribunal‟s reasoning is that there was delay in decision- making process and that was considered to be sufficient cause. The conclusion does not stand to reason. On the contrary, it shows non-application of mind to the germane issue. Even though a liberal approach has to be adopted, that does not mean that any plea without any plausible or acceptable basis, and not even having semblance of rationality has to be accepted, and delay has to be condoned. That shall be against the very spirit of law. Prescription of time-limit for filing appeals would become meaningless in such event. Merely because State is involved, that does not mean that any lethargic or supine inaction has to be condoned or ignored, and even if no reason is indicated that would be inconsequential. The subject-matter was not very complex and rather the grounds of appeal filed appear to be of very routine nature. As has been observed by this Court in Hindustan Aeronautics Limited, Koraput Division Vrs. State of Odisha, (1976) 38 STC 538, delay caused by the concerned officer in giving his opinion, without any explanation whatsoever does not constitute sufficient ground for condonation of delay. In the aforesaid premises, the inevitable conclusion is that the Tribunal has not applied its judicial mind to the question whether delay was to be condoned.”

10.17. In Amalendu Kumar Bera Vrs. State of West Bengal, (2013) 4 SCC 52 the consideration of “sufficient cause” qua official business has been perceived in the following manner:

“There is no dispute that the expression “sufficient cause” should be considered with pragmatism in justice oriented approach rather than the technical detection of “sufficient cause” for explaining every day‟s delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in Union of India Vrs. Nripen Sarma, (2013) 4 SCC 57 = AIR 2011 SC 1237 the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant-Union of India. The High Court refused to condone the delay on the ground that the appellant- Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became operational and barred by limitation.”

10.18. In Mool Chandra Vrs. Union of India, AIR 2024 SC 4046 the observation of the Hon‘ble Supreme Court of India is as follows:

“20. Be that as it may. On account of liberty having been granted to the appellant to pursue his remedy in accordance with law, yet another O.A. No. 2066 of 2020 along with an application for condonation of delay came to be filed. The delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.

21. In this background when we turn our attention to the facts on hand, it would emerge from the records that appellant being aggrieved by the dismissal of the O.A. No. 2066 of 2020 on the ground of delay had approached the Delhi High Court challenging the same. The High Court on the ground of penalty imposed being a minor penalty, refused to entertain the writ petition or in other words confirmed the order impugned before the Tribunal on merits. This Court in Commissioner, Nagar Parishad, Bhilwara Vrs. Labour Court, Bhilwara, (2009) 3 SCC 525 has taken a view that while deciding an application for condonation of delay the High Court ought not to have gone into the merits of the case. It has been further held:

„5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is restored to its original file. The High Court is requested to decide the appeal on merit in accordance with law after giving hearing to the parties and after passing a reasoned order.‟

22. If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay. This Court in Municipal Council, Ahmednagar Vrs. Shah Hyder Beig, (2000) 2 SCC 48 has held:

“6. Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in N.L. Abhyankar Vrs. Union of India, (1995) 1 Mah LJ 503 observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case, (1995) 1 Mah LJ 503 stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated:

„The real test for 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 petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.‟

***”

10.19. In the case of State of Odisha Vrs. Nirupama Das, 2024 SCC OnLine Ori 2461, this Court has held as follows:

“9. It is however noted that these observations (Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107) have been further considered by the Supreme Court in several cases including the case of the Pathapati Subba Reddy (died) by L.Rs. & Others Vrs. The Special Deputy Collector (LA), (2024) 4 SCR 241 = 2 Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107. 2024 SCC OnLine SC 513 wherein following was observed:

„26. „***‟

10. Again in the case of Postmaster General Vrs. Living Media (India) Ltd., (2012) 3 SCC 563, the decision of Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107 = (1987) 2 SCR 387 was considered and it was held that the law of limitation undoubtedly binds everybody. The following observations of the Supreme Court are noteworthy in this context:

„28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

10.20. Thus, taking an overall view of the matter, this Court finds that the proposed appeal is grossly delayed and the explanation given, as narrated above, does not, in the considered view of this Court, constitute sufficient cause so as to be accepted. Though it has been argued that valuable property of the State is involved yet as per the settled position of law the merits of the case are not to be gone into while considering the question of limitation.”

10.21. In the case of Laxmi Gouda Vrs. The District Collector, Ganjam, CMP No.1271 of 2022, decided on 22.10.2024 vide MANU/OR/1531/2024, this Court held as follows:

“10. Thus, in the instant case, the Court should not delve into the period of delay occurred in filing the Appeal, but the explanation that has been offered for such delay is material for consideration. As discussed earlier, the so-called explanation for condonation of delay are mere excuses and a defensive plea has been taken by the Tahasildar, Hinjili to save his skin by shifting the responsibility to his predecessors without explaining what the Government functionaries did during all the aforesaid period to file the Appeal in time. In view of the above, the case laws cited by Mr. Dash, learned AGA, as stated above, are of no assistance to him.

11. By efflux of time, a right has accrued in favour of the Petitioners/Respondents by virtue of the judgment and decree passed in CS No.95 of 2014. The same cannot be taken away so lightly without even discussing the objection raised by them opposing condonation of delay as has been done by learned Additional District Judge, Chatrapur. Exclusion of period of COVID-19 is immaterial and inconsequential for consideration of petition to condone the delay in filing the Appeal, as the statutory period for filing the appeal had expired four years before the outbreak of COVID-19 pandemic.

12. No doubt, public interest plays a vital role while considering the petition for condonation of delay, but that does not take away the responsibility of the party seeking for condonation of delay to provide sufficient cause for the same. In the case of Sumitra Das (supra) as well as in Chief Postmaster General (supra), it has been held that law shelters everyone under the same umbrella and should not be swirled for the benefit of a few. In the instant case, it appears that learned

Additional District Judge had categorically held that there were latches on the part of the revenue authorities in filing the Appeal in time. Having observed so, learned Additional District Judge could not have proceeded further to condone the delay in filing the Appeal, as the finding of latches on the part of the revenue authorities itself makes it clear that no sufficient cause has been shown by the Government functionaries for condonation of delay.

13. The Government might suffer for refusal of the prayer to condone the delay in filing the Appeal, but that cannot be a ground to consider the application in favour of the Government functionaries who are at fault in not preferring the Appeal in time. It is open to the Government to take appropriate action and recover the loss, if any, caused for the latches of their Officers/staff, but that cannot be a ground to drag the poor litigants/Petitioners to Court in the garb of public interest.”

The action against the indolent:

11. Having thus discussed the gamut of “sufficient cause” vis-à-vis “good cause” with reference to the parameters of consideration of germane grounds for condonation of delay in preferring appeal, this Court feels expedient to observe that in State of M.P. Vrs. Pradeep Kumar, (2000) 7 SCC 372, the Hon‘ble Supreme Court held that if an appeal is time barred, the Court should either return the memorandum of appeal to the appellant to submit it along with an application under Section 5 of the Limitation Act or should provide a chance to file application for condonation of delay. The Court cannot, under such circumstances, dispose of the appeal on merit. In S.V. Matha Prasad Vrs. Lalchand Meghraj, (2007) 14 SCC 722, it has been clearly held that while dealing with an application under Section 5 of the Limitation Act, the Court cannot dispose of an appeal on merit and such a course has been disapproved by the Hon‘ble Supreme Court of India. However, in O.P. Kathpalia Vrs. Lakhmir Singh, AIR 1984 SC 1744, it is held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

11.1. The Hon‘ble Supreme Court of India dismissed the Special Leave Petition being filed with delay in the case of Commissioner of Income Tax Vrs. Hapur Pilkhuwa Development Authority, Special Leave Petition (Civil) Diary No.26127 of 2018, vide Order dated 27.08.2018 by observing thus:

“This petition for special to leave has been filed by the Commissioner of Income Tax, Ghaziabad.

First of all this petition has been filed after a delay of 596 days. There is an inadequate and unconvincing explanation given for the delay in filing the petition.

***

As we have noted, there is an inadequate explanation of delay of 596 days in filing the petition and a misleading statement about pendency of a similar civil appeal. Under the circumstances, we dismiss the petition with costs of Rs.10 lacs to be paid to the Supreme Court Legal Services Committee within four weeks from today. The amount be utilized for juvenile justice issues. List the matter for compliance after four weeks.”

11.2. In State of Himachal Pradesh Vrs. Gorkha Ram, Special Leave Petition (Criminal) Diary No. 27426 of 2020, vide Order dated 23.08.2021, the Hon‘ble Supreme Court made the following observation:

“The SLP has been filed with a delay of 636 days. On our query as to what is the reason, learned counsel seeks to contend it is because of COVID. The order was passed on 05.12.2018 and thus, we asked the counsel as to which year was the world affected by Covid 2019 or 2020 to which learned counsel‟s answer initially was 2019, possibly to cover the delay but realizing that it was 2020, he states that the papers were not received by him. To say the least, we are shocked at the conduct of the petitioner-State and the manner of conduct the litigation in such a sensitive matter. There is not even a semblance of explanation for delay. We however, would not like to dismiss the petition on limitation because of the seriousness of the issue involved. But that is no excuse why the State should not be made accountable of such inordinate delay and the persons responsible for the same. We thus, condone the delay but subject to imposition of costs of Rs.25,000/- to be deposited with the Supreme Court Group „C‟ (Non-Clerical) Employees Welfare Association within four weeks with a direction to hold the enquiry, fix responsibility and recover the amount from the officers concerned. The certificate of recovery should be filed before this Court within the same period of time. The application for condonation of delay is allowed in the aforesaid terms.”

11.3. In the case of Deputy Conservator of Forests Vrs. Timblo Irmaos Ltd., (2021) 14 SCC 516, the following observation has been made:

“1. The special leave petition has been filed after a delay of 462 days. This is one more case which we have categorised as “certificate cases” filed before this Court to complete a mere formality and save the skin of the officers who have been throughout negligent in defending a litigation!

***

5. We have dealt with the issue of the Government authorities in approaching courts belatedly as if the statute of limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, [LAO Vrs. Katiji, (1987) 2 SCC 107]. This situation no more prevails and this position had been elucidated by the judgment of this Court

in Postmaster General Vrs. Living Media (India) Ltd., (2012) 3 SCC 563.

6. These aspects have been analysed by us recently in State of M.P. Vrs. Bherulal, (2020) 10 SCC 654. In the aforesaid judgment we have defined “certificate cases” the objective of which is only to put a quietus to the issue by recording that nothing could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process. The irony is that despite observations, no action was ever taken against the officers who sit on the file and do nothing.

7. The matter is further aggravated in the present case and even the present petition is filed with a delay of 462 days and once again the excuse is of change of the counsel.

8. We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. The learned counsel for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the officers concerned responsible for the manner in defending this petition must be made to pay for it.

9. We are thus constrained to dismiss the petition as barred by time and impose costs of Rs.15,000 on the petitioner for wastage of judicial time. We put it to the learned counsel that the costs would have been much greater but for the fact that a young counsel is appearing before us and we have given considerable concession in the costs on that factor alone.

10. The costs be recovered from the officers responsible for the delay and costs be deposited within a month with the Supreme Court Employees‟ Welfare Fund. The certificate of recovery be also filed within the same period of time.”

11.4.The Supreme Court of India in State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654, made it clear that,

“5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a goby. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as “certificate cases”. The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.”

11.5.In State of Odisha Vrs. Sunanda Mahakuda, (2021) 11 SCC 560 while declining to condone the delay of 783 days in preferring writ appeal before the Division Bench of this Court against the Order of learned Single Judge, the Supreme Court of India made the following observations:

“1. The present SLPs have been filed after a delay of 1954 days in respect of the impugned order dated 12.03.2015 [Sunanda Mahakuda Vrs. State, WP (C) No. 7021 of 2004, Order dated 12.03.2015 (Ori)] of the learned Single Judge and delay of 545 days qua the order [Deptt. of Water Resources Vrs. Sunanda Mahakuda, Writ Appeal No. 147 of 2017, Order dated 19.04.2019 (Ori)] in writ appeal. We may notice that the writ appeal itself was preferred after a delay of 783 days and was found not to have been properly explained. We may add that the present special leave petition is filed after contempt proceedings were initiated on 13.05.2019, on dismissal of the writ appeal. Now, it is our chance to scrutinise a little more closely the aforesaid conduct of the State Government.

4. There is no doubt that these are cases including the present one where the Government machinery has acted in an inefficient manner or it is a deliberate endeavour. In either of the two situations, this Court ought not to come to the rescue of the petitioner. No doubt, some leeway is given for Government inefficiency but with the technological advancement now the judicial view prevalent earlier when such facilities were not available has been over taken by the elucidation of the legal principles in the judgment of this Court in Postmaster General Vrs. Living Media (India) Ltd., (2012) 3 SCC 563. We have discussed these aspects in State of M.P. Vrs. Bherulal, (2020) 10 SCC 654 and thus, see no reason to repeat the same again.

5. In the present case, the State Government has not even taken the trouble of citing any reason or excuse nor any dates given in respect of the period for which condonation is sought. The objective of such an exercise has also been elucidated by us in the aforesaid judgment [State of M.P. Vrs. Bherulal, (2020) 10 SCC 654 where we have categorised such cases as “certificate cases”.

6. The object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say nothing could done because the highest Court has dismissed the appeal. It is mere completion of formality to give a quietus to the litigation and save the skin of the officers who may be at fault by not taking action in prescribed time. If the State Government feels that they have suffered losses, then it must fix responsibility on officers concerned for their inaction but that ironically never happens. These matters are preferred on a presumption as if this Court will condone the delay in every case, if the State Government is able to say something on merits.

7. Looking to the period of delay and the casual manner in which the application has been worded, we consider it appropriate to impose costs of Rs.25,000 to be deposited with the Supreme Court Advocates-on-Record Welfare Fund. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing both the writ appeal and the special leave petition and a certificate of recovery be also filed in this Court within the same period of time.”

Taking note of State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654 and State of Odisha Vrs. Sunanda Mahakuda, (2021) 11 SCC 560, in the cases of State of Gujarat Vrs. Tushar Jagdish Chandra Vyas, 2021 SCC OnLine SC 3517; State of U.P. Vrs. Sabha Narain, (2022) 9 SCC 266; Union of India Vrs. Central Tibetan Schools Admin, 2021 SCC OnLine SC 119; Union of India Vrs. Vishnu Aroma Pouching Pvt. Ltd., (2022) 9 SCC 263; Commissioner of Public Instruction Vrs. Shamshuddin, 2021 SCC OnLine SC 3518 identical view has been expressed by the Supreme Court of India.

Conclusion:

12. Before going into the merits of the case, first of all, it should be noted that in a case of this nature where more than 25 years have been elapsed since the judgment and decree being passed in the suit and around 19 years have been passed in preferring appeal in the year 2019 under Section 96 of the CPC since dismissal of petition under Order IX, Rule 13 ibid. way back in the year 2000, it is well settled that length of delay would be material coupled with the reasons stated thereof for condonation of delay. In other words, for condonation of delay, the reasons ascribed must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay. Unless proper explanation is offered, the Courts could not exercise its discretion in proper perspective to advance substantial justice. It is also settled that when a Court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute. The appellate Court should also see whether the trial Court has taken into consideration all the aspects of the matter, the advantage or disadvantage that may be caused to the other side while condoning the delay inasmuch as during the interregnum, the other party could have asserted a vested right. It deserves to be noted that when there is inordinate delay in approaching the Court in appeal, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party.

12.1.If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the other side in that application will be fallacious. Each case has to be decided on the facts and circumstances of the case.

12.2.In case of inordinate delay, length of delay is a relevant factor to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed period of limitation. Once a party loses his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. The question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy. A litigant cannot be allowed to have a ―Sword of Damocles‖ hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.

13. With the perspective and the perception of Section 5 of the Limitation Act, 1963, this Court now ventures to examine whether the learned District Judge, Puri while condoning the delay has exercised his jurisdiction seemly by applying his conscientious discretion.

14. The fact on record as emanating from the impugned Order dated 07.02.2020 of the learned District Judge depicts that he was considering the question whether the delay occurred in filing appeal under Section 96 of the CPC ―can be excluded or condoned after 25 years and more‖.

14.1.The factual narration of said appellate Court revealed that ex parte judgment and decree of the learned Civil Judge, Senior Division, Puri, the subject matter of the appeal, was rendered on 21.06.1994 in TS No.191 of 1992 and the petition for restoration of said title suit under Order IX, Rule 13, being Miscellaneous Case No.103 of 1996, got dismissed in the year 2000. Nonetheless, after said dismissal there was ―inscrutable face of the sphinx‖ silence by the opposite party No.2-Shri Jagannath Temple Managing Committee for nearly 19 years and more than 25 years from the date of judgment and decree. The appeal was filed in 2019.

14.2.Though objection was filed before the learned District Judge, Puri in connection with aforesaid petition of the Shri Jagannath Temple Managing Committee, the same appears not to have been considered in proper perspective, yet while condoning the delay of 25 years and odd, the appeal was directed to be admitted for hearing on merit. Notwithstanding making the observation that ―the obligation of the State Authorities and the Temple Authorities was not discharged properly by its Administrator nor the interest of Lord Jagannath was protected‖, and having noticed the decision of Hon‘ble Supreme Court of India in Estate Officer Haryana Urban Development Authority Vrs. Gopi Chand Atreja, (2019) 2 SCR 1000 (The observations of the Hon‘ble Supreme Court are as follows: “18. If, according to the appellants-HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act. 19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer. 20. In our view, it is a clear case where the appellant-HUDA, i.e., their officers, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, the officers-in-charge of the case should be made answerable for the lapse on their part and make good the loss suffered by the appellantsHUDA. 21. A delay of 1942 days (4 years 6 months), in our view, is wholly inordinate and the cause pleaded for its condonation is equally unexplained by the appellants. In any case, the explanation given does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. It was, therefore, rightly not condoned by the High Court and we concur with the finding of the High Court”), learned District Judge, Puri abruptly jumped to the conclusion that ―Inasmuch as the present appeal has been preferred challenging the judgment and decree obtained as void and obtained by fraud‖ without any discussion as to the material particulars and without being satisfied about the explanation with respect to inordinate delay in filing appeal. It seems the learned District Judge ignored to perceive that the Managing Committee has suppressed to place the fact of dismissal of petition under Order IX, Rule 13, CPC.

14.3.Having perused the petition under Section 5 of the Limitation Act, 1963, filed by the opposite party No.2 before the learned District Judge, Puri, it could be ascertained that while admitting there was delay of more than 25 years in preferring appeal, the reason for the delay was given as:

“… Within this 25 years there was no occasion for the Temple Administration to know about the ex parte judgment passed in the above mentioned suit. …”

14.4.In the said petition there is no whisper about dismissal of petition for restoration of suit filed under Order IX, Rule 13, CPC in the year 2000. Such a fact is narrated in the objection of the present petitioner. Suppression of material fact by the opposite party No.2 does liable for rejection of appeal itself. In this regard it may be relevant to have regard to following observation of the Hon‘ble Supreme Court of India in the case of Smt. Badami Vrs. Bhali, (2012) 6 SCR 75:

“In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.

***

In this regard we may profitably quote a statement by a great thinker: “Fraud generally lights a candle for justice to get a look at it; and rogue's pen indites the warrant for his own arrest.”

14.5.In Haryana Urban Development Authority and Ors. Vs. Jagdeep Singh; AIR 2023 SC 2257, the Hon‘ble Supreme Court held as under:

“14. For filing the present frivolous appeal, in our opinion, the Appellants deserve to be burdened with heavy cost. This Court had deprecated the conduct of the litigants in flooding this Court with frivolous litigations, which are choking the dockets as a result of which the matters, which require consideration are delayed. Observations made in Dynandeo Sabaji Naik and Ors. Vrs. Pradnya Prakash Khadekar and Ors., (2017) 5 SCC 496 are extracted below:

'13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

14. Courts across the legal system-this Court not being an exception— are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behaviour. Liberal access to justice does not mean access to chaos and Indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.”

14.6.In N. Mohan Vrs. R. Madhu, (2020) 20 SCC 302 (3- Judge Bench) it is held as follows:

“15. The defendant against whom an ex-parte decree is passed, has two options. First option is to file an application under Order IX Rule 13 CPC and second option is to file an appeal under Section 96(2) CPC. The question to be considered is whether the two options are to be exercised simultaneously or can also be exercised consecutively. An unscrupulous litigant may, of course, firstly file an application under Order IX Rule 13 CPC and carry the matter up to the highest forum; thereafter may opt to file appeal under Section 96(2) CPC challenging the ex-parte decree. In that event, considerable time would be lost for the plaintiff. The question falling for consideration is that whether the remedies provided as simultaneous can be converted into consecutive remedies.

16. An appeal under Section 96(2) CPC is a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed under Order IX Rule 13 CPC was dismissed. Whether the defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In case the court is satisfied that the defendant has adopted dilatory tactics or where there is lack of bona fide, the court may decline to condone the delay in filing the first appeal under Section 96(2) CPC. But where the defendant has been pursuing the remedy bona fide under Order IX Rule 13 CPC, if the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal. Whether the defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the Code after the dismissal of the application under Order IX Rule 13 CPC, is a question of fact and the same has to be considered depending upon the facts and circumstances of each case.

17. When the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX, Rule 13 CPC. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX, Rule 13, CPC.”

14.7.The appellate Court while proceeding to hold that ―the proceeding under Order IX, Rule 13 of CPC for default was dismissed for non-prosecution still the appellant (the opposite party No.2 herein) has a right to prefer the present appeal‖, did not discuss the circumstances which prevented the Shri Jagannath Temple Managing Committee from approaching the Court since 2000. This Court takes congnizance of the explanation proffered by the learned counsel for the opposite party No.2 by way of written note of argument filed on 18.12.2024, which is to the following effect:

“So far filing application under Order IX, Rule 13, CPC for setting aside the ex parte judgment vide Miscellaneous Case No.103 of 1996 and not taking steps in the said Miscellaneous Case resulting dismissal was due to negligence of the respective staff of the respective Department of Temple Administrator, i.e., (Revenue) and by the time the fact came to the knowledge of the Temple Administrator the respective staff who were assigned with the Court work were retired from service and died subsequently.”

14.8.This Court does not appreciate such a fact in absence of any material being placed demonstrating whether any step/action was contemplated to be taken or taken by the opposite party No.2. Such a plea as advanced by way of argument before this Court for the first time is rejected.

14.9.Furthermore, this Court takes stern view on this point inasmuch as there is no pleading contained in the petition filed by the opposite party No.2 under Section 5 of the Limitation Act, 1963, with respect to dismissal of Miscellaneous Case No.103 of 1996; nonetheless, such a fact was for the first time surfaced on the objection being filed by the petitioner before the learned District Judge, Puri. Contents of paragraph 1 of the petition for condonation of delay in filing appeal seems to be camouflaged one for the opposite party No.2 has drafted the petition as if after judgment being pronounced in TS No.191 of 1992 by the learned Civil Judge, Senior Division, Puri on 21.06.1994, the opposite party No.2 could come to know about such judgment and decree on 10.09.2019. Having suppressed the fact of dismissal of Miscellaneous Case No.103 of 1996, for non-prosecution in the year 2000, the conduct of the opposite party No.2 is tell-tale. The merit of the appeal, if at all, could not have weighed much for the purpose of consideration of petition for condonation of delay in absence of sufficient cause being shown for the inordinate delay.

14.10. At this juncture, it is apt to have reference to the following observation of the Hon‘ble Supreme Court in the case of State of Madhya Pradesh Vrs. Ramkumar Choudhary, 2024 SCC OnLine SC 3612 = 2024 INSC 932:

7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within hat period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1st day and the 90th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the 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 the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See: Ajit Singh Thakur Singh Vrs. State of Gujarat, (1981) 1 SCC 495 = AIR 1981 SC 733).”

14.11. This Court is satisfied that the learned District Judge, Puri while condoning the delay vide Order dated 07.02.2020 has failed to exercise his jurisdiction appropriately. As has already been observed that the objections raised by the petitioner against the contents of the petition under Section 5 of the Limitation Act, 1963 filed by the opposite party No.2-Shri Jagannath Temple Managing Committee in RFA No.60 of 2019 have not been considered on facts in their right earnest by the learned District Judge, Puri, this Court having regard to above discussed legal approach set forth by the Hon‘ble Supreme Court of India, and considering the aspect that the ex parte judgment and decree are binding on the parties inter se having the same effect as a regular judgment and decree, the impugned Order dated 07.02.2020 condoning the delay in filing appeal under Section 96 of the CPC cannot be countenanced.

15. The learned District Judge, Puri in his Order dated 07.02.2020 has placed much emphasis on the protection of properties of the deities, held to be perpetual minor in view of Lokesh Patro Vrs. Commissioner of Endowments, Odisha, 108 (2009) CLT 61. However, it has been observed in the said Order as follows:

“*** In other words, the Managing Committee was the marfatdar of the Temple and the property. Since Prabhu Jagannath bije at Puri is a juristic perpetual minor and disabled person and cannot protect properties of its own and in that case the State Authorities and the Managing Committee are under obligation to protect the interest of such a minor or physically disabled person. But in the suit filed by the present respondent No.1 the reasons best known to the Temple Authority and the State Authorities is as to how they allowed the present respondent No.1 to obtain a decree in his favour ex parte by not contesting the suit. ***”

15.1.It seems the learned appellate Court misconceived such fact. The following provisions contained in the Shri Jagannath Temple Act, 1955, are relevant for the present purpose:

“4. Definitions.—

(1) In this Act, unless there is anything repugnant in the subject or context—

(a) “Committee” means the Shri Jagannath Temple Managing Committee constituted under this Act;

(d) “Record of Rights” means the Record of Rights prepared under the Puri Shri Jagannath Temple (Administration) Act (XIV of 1952);

3. Delegation of powers to the Committee.—

The Puri Shri Jagannath Temple (Administration) Act, 1952 shall be deemed to be a part of this Act and all or any the powers and the functions of the State Government under the said Act shall be exercisable by the Committee under this Act from such date or dates as the State Government may by notification direct.

5. Incorporation.—

Notwithstanding anything in any other law for the time being in force or custom, usage or contract, Sanad, deed or engagement, the administration and the governance of the Temple and its endowments shall vest in a Committee called the Shri Jagannath Temple Managing Committee constituted as such by the State Government, and it shall have the rights and privileges in respect thereof as provided in Section 33. It shall be a body corporate, having perpetual succession and a common seal, and may, be the said name sue and be sued.

6. Constitution of the Committee.—

(1) The Committee constituted under Section 5 shall consist of 18 members and shall be composed as follows:

(a) the Raja of Puri who shall be the Chairman;

(b) an officer not below the rank of Additional Chief Secretary, ex-officio member, who shall be the Working Chairman;

(c) the Chief Administrator appointed under subsection (1) of section 19, ex-officio members, who shall be the Secretary;

(d) the Collector of the District of Puri - ex officio member;

(e) the Commissioner of Endowments appointed under the Orissa Hindu Religious Endowments Act, 1951 - ex officio member;

(f) the Additional Secretary, Law Department incharge of Shri Jagannath Temple Administration, ex officio member;

g) the Superintendent of Police, Puri- ex officio member;

(h) the Superindending Archaeologist, Archaeological Survey of India, Bhubaneswar Circle, Bhubaneswar - ex officio member;

(i) one person to be nominated by the State Government from among the persons entitled to sit on the Muktimandap-member;

(j) Five persons to be nominated by the State Government from among the sevaks of the Temple members.

(k) one person representing the Maths and other Institutions connected with the seva-puja or nitis of the Temple or any Hindu religious/spiritual organisation to be nominated by the State Government member; and

(l) three persons (one of whom shall be Chartered Accountant) from among the persons who do not belong to any of the categories referred to in clauses (j) and (k) - members:

Provided that the State Government shall nominate persons for the categories referred to in clauses (i), (j) and (k) out of a panel of names prepared by the Chief Administrator for each such category which shall consist of names twice the number of members required to be nominated under the respective clauses.

(2) No person who does not profess the Hindu religion, shall be eligible for membership.

(3) If the officers mentioned under clauses (b), (d), (e), (f), (g) and (h) of sub-section (1) do not profess the Hindu religion, and officer of the State/Central Government of equivalent rank professing such religion may be nominated by the State/Central Government for the purpose.

(4) The appointment or nomination of the members shall be notified in the Orissa Gazette.”

15.2.Such being position, it cannot be said that the minor‘s interest in the property was not protected in the suit in view of unequivocal provisions contained in the Shri Jagannath Temple Act, 1955 (Vide Orissa Act No. 11 of 1955 (assented to by the President on 15th October, 1955)— an Act to provide for better administration and governance of Shri Jagannath Temple at Puri and its endowments.). For the dereliction in duty of the Managing Committee, a body corporate, having perpetual succession and a common seal, and in the said name it could sue and be sued, the petitioner cannot be subject to rigmarole, that too the Managing Committee has approached the Court after lapse of more than 25 years. No suggestion even is placed on record before the learned District Judge that action was taken or contemplated to have been taken against the erring officials/members of the Managing Committee.

15.3.For the said reason also the Order dated 07.02.2020 of the learned District Judge, Puri is held to be infirm and untenable in the eye of law.

16. Under the above premises, the civil revision petition succeeds and the Order dated 07.02.2020 condoning inordinate delay in filing appeal under Section 96 of the CPC in consideration of the petition under Section 5 of the Limitation Act, 1963, deserves to be set aside as no plausible reason was ascribed which prevented it to approach the Court within prescribed period and suppressing the material fact. This Court does so.

17. Having thus set aside the impugned Order dated 07.02.2020, ex consequenti, the appeal preferred under Section 96 of the CPC by the opposite party No.2-Shri Jagannath Temple Managing Committee, bearing RFA No.60 of 2019, before the learned District Judge, Puri stands dismissed.

18. Accordingly, the civil revision petition is allowed with cost of Rs.25,000/- (rupees twenty five thousand only) to be deposited by the opposite party No.2 within a period of two weeks from today with the High Court Bar Association Advocates‘ Welfare Trust.