Judgment:
Shashi Kant Gupta, J.
1. The aforesaid writ petition is directed against the order dated 10.3.2000, passed by respondent No. 1 whereby the application filed under Section 5 of the Indian Limitation Act, 1963 has been allowed.
2. The brief facts of the case are as follows:
3. The petitioners are the landlords and owners of the disputed premises No. 104A/170 Rambagh, Kanpur Nagar. They filed an application under Section 21(8) of the Act. The Rent Control and Eviction Officer, Kanpur Nagar, by order dated 31.1.1996 allowed the application under Section 21(8) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) and enhanced the rent to Rs. 4,900 per month plus water tax. The respondent Nos. 2 and 3 filed a review application before the court below for reviewing the order dated 31.1.1996 and the same was dismissed on 13.5.1998 as non-maintainable. Thereafter an appeal under Section 22 was filed against the order dated 31.1.1996 on 28.5.1998 alongwith an application under Section 5 of Indian Limitation Act, 1963 for condoning the delay in filing the appeal under Section 22 of the Act against the order dated 31.1.1996, which was registered as Case No. 468/74/98. The respondent No. 1 by order dated 10.3.2000 allowed the application filed under Section 5 of Indian Limitation Act and condoned the delay in filing the appeal under Section 22 of the Act. Hence, the present writ petition.
4. Learned Counsel for the petitioners has submitted that the impugned order is illegal inasmuch as the contesting respondents could not show sufficient cause for condoning the delay in filing the appeal. It has been further submitted that the contesting respondents filed the review application against the order dated 31.1.1996 (whereby rent was enhanced) in order to delay the proceeding of the case although the said review application was not at all maintainable. It was further submitted that day-to-day delay has not been explained by the contesting respondent and the appeal was filed by a delay of 817 days. It was further submitted that the respondent No. 1 has acted illegally and arbitrarily in condoning the delay in filing the appeal.
5. On the other hand learned Counsel for the contesting respondent has submitted that the delay was sufficiently explained and there was no deliberate and wilful default on the part of contesting respondents to file appeal after the period of limitation. It was further submitted that due to wrong advise the review application was filed against the order dated 30.1.1996 and when the review application was dismissed on 13.5.1998, immediately thereafter, after seeking permission from the concerned authority the appeal was filed ori 28.5.1998 without any further loss of time. Therefore, the impugned order passed by the court below is legal and just and cannot be interfered with.
6. Heard Sri Ankush Tandon, learned Counsel for the petitioners Sri I.S. Singh learned standing counsel appearing on behalf of respondents No. 2 and 3 and perused the record.
7. It is not disputed that the order was passed on 31.1.1996 enhancing the rent in favour of the petitioner under Section 21(8) of the Act and within one month of the passing of the order dated 31.1.1996, the review application was filed on 23.2.1996 and the same was dismissed on 13.5.1998. Immediately thereafter, the appeal under Section 22 of the Act was filed on 28.5.1998 alongwith delay condonation application and the same was allowed by the impugned order on 31.1.1996.
8. From the aforesaid facts it is quite clear that the contesting respondent was not sleeping over the matter. The review application was filed on 23.2.1996 within one month after the passing of the order dated 31.1.1996. It was submitted by learned Counsel for the contesting respondent that on account of wrong advise given by the legal advisor, review application was filed, therefore contesting respondents cannot be held guilty of negligence so as to disentitle to plead sufficient cause under Section 5 of the Indian Limitation Act. The mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of Section 5 of the Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice. The Apex Court in State of West Bengal v. Administrator, Howrah Municipal Corporation and Ors. 1972 SCC 749, has held as follows in para 37A:
37A. The advice given by the lawyer to file application under Article 227 of the Constitution is also a circumstances to be taken into account in considering whether the appellant has shown sufficient cause in our opinion to be a circumstance to be taken into account in the circumstances where the appellant has shown sufficient cause. Day-to-day delay does not mean that nematic approach should be adopted. The doctrine should be applied in common sense.
9. In various pronouncement of the Apex Court the word sufficient cause has been given liberal construction with a view to advance substantial justice. The Apex Court in Ramjidas v. Mohan Singh 1978 ARC 496 (SC), has held that as far as possible the Court discretion should be exercised in favour of hearing and not to shut out hearing. Section 14 of the Limitation Act also provide that in computing the period of limitation for any suit the time during which the plaintiff had been prosecuting with due diligence another civil proceeding whether in a Court of first instance or of appeal or revision against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
10. In the present case it cannot be said that the contesting respondents were prosecuting the case in the review proceeding mala ftdely and not in good faith. It has been submitted by learned Counsel for the respondent that merely because of wrong advice the said review application was filed before the court below. The Apex Court in the case of State of Nagaland v. Lipok A.O. and Ors. : 2005 (3) SCC 752, has held as follows:
The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrsihnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the a working of the Government without being unduly indulgent to the slow motion of its wheels..What constitute sufficient cause cannot be laid down by hard and fast rule. In New India Insurance Company Limited v. Shanti Mishra this Court held that the discretion given by Section 5 should be defined or crystallised so as to sufficient cause should receive liberal construction. In Brij Inder Singh v. Kanshi Ram it was. observed that as to whether the appellant has acted with reasonable diligence in prosecuting the appeal in Shakuntala Devi v. Kantal Kumar, a Bench of three Judges had held that unless warrant of bona fide of such inaction or negligence would deprive the party of protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
11. The court below while allowing application under Section 5 of the Limitation Act has given cogent, convincing and satisfactory reasons. The court below has recorded a finding of fact and this Court cannot substitute its own opinion with the opinion of the court below. The findings are neither perverse nor based on irrelevant material. I am in the agreement with the findings recorded by the lower court and the reasons mentioned by the court below are good enough to satisfy the order.
12. It is also relevant to note that the appeal under Section 22 of the Act was filed on 28.5.1998 just within 15 days from the date of order dated 13.5.1998. As such no motive or mala fide can be attributed to the contesting respondents.
13. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katji : AIR 1987 SC 1353, observed that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the reason that other side cannot claim to have vested right in injustice being done because of non-deliberate delay.
14. The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
15. In N. Balakrishnan v. M. Krishnamurthy : (1998) 7 SCC 123 : AIR 1998 SC 3222 : 1999 (1) AWC 15 (SC), the Apex Court explained the scope of limitation and condonation of delay, observing as under:
The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The 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. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy.
16. In Smt. Prabha v. Ram Prakash Kalra 1987 (Supp) SCC 339, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.
17. The Apex Court in the case of State of West Bengal v. Administrator, Howrah Municipalities and Ors. 1972 SCC 749, has held that if a party had acted in a particular manner on a wrong advice given by his local advisor he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act. It is also held in the said case that the word sufficient cause should receive a liberal construction so as to advance substantial justice and no negligence or inaction for want of bona fide is imputable to a party.
18. The Apex Court in G. Ramegowda, Major etc. v. Special Land Acquisition Officer, Bangalore : AIR 1988 SC 897, condoned the delay in filing the appeal and in this context observed as follows:.it is true, no general principle saving the party from all mistakes of its counsel, if there is negligence, deliberate or gross inaction or lack o bona fides on the part of the party or its counsel if there is no reason why the opposite side should expose to a time barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
19. This Court recently in the case of Bharat Auto, Centre v. Commissioner of Income Tax, Varanasi 2005 (149) Tax 228 (All), while dealing with the similar situation wherein the delay in filing the appeal before the Commissioner of Income Tax (Appeals) was caused due to the pendency of the application under Section 154 of the Act has observed as follows:
Having heard the learned Counsel for the parties, we are of the opinion that the Commissioner of Income Tax (Appeals) as well as the Tribunal has taken pedantic view while considering the application for condonation of delay. It has been consistently held by the Apex Court that in the matter of condonation of delay a liberal and pragmatic view should be taken. The reasons given by the appellant for the delay appears to be sufficient cause and, accordingly, the delay is liable to be condoned.
20. Thus, while deciding such an application justice oriented approach is required to be adopted.
21. In view of aforesaid discussion I do not see any illegality or infirmity in the order. The writ petition fails and is accordingly dismissed.
22. It is needless to state that the court below will make every endeavour to decide the appeal as early as possible.