Judgment:
R.B. Misra, J.
1. Heard Sri M.M.D. Agarwal. learned counsel for the petitioners, and learned standing counsel for the State-respondents. None appears for the private respondents.
2. In this petition prayer has been made to quash the orders dated 21.2.1984 and 15/19th July, 1982 passed by the 8th Additional Munsif, Aligarh in Misc. Case No. 93 of 1983, U.P.S.E.B. and Ors. v. Smt. Pushpa Saxena and Ors. and in Suit No. 128 of 1980, Smt. Pushpa Saxena v. U.P.S.E.B. and Ors. respectively and order dated 3.9.1987 passed by the 3rd Additional Civil Judge, Aligarh in Civil Misc. Appeal No. 37 of 1984, U.P.S.E.B. v. Smt. Pushpa Saxena and Ors.).
3. It appears that the respondent No. 3 filed a Suit No. 128 of 1980 before the Munsif Koil, Aligarh for cancellation of appointment of respondent Nos. 5, 6, 7 and 8 and also for issuance of mandatory injunction directing the defendant Nos. 2 and 3 to appoint the respondent No. 3 as trained graduate teacher w.e.f. 1.7.1978 in Vidyut Parishad Bal Vidyalaya (Montenseri) School, Kasimpur, Aligarh. It also appears that in the aforesaid suit an ex-parte decree was passed on 25.1.1982, against which the petitioner filed a recall application, which too was dismissed by the Munsif, Aligarh on 21.2.1984 and the Misc. Appeal No. 37 of 1984 filed against the aforesaid orders was also dismissed by the 3rd Additional Civil Judge, Aligarh. Being aggrieved against the aforesaid orders decreeing the suit of respondent No. 3, the petitioner has come to this Court by saying that the facts placed before the learned Munsif and subsequently before the appellate court were not properly considered and the application under Section 5 of the Indian Limitation Act read with application under Order IX, Rule 13 of C.P.C. was not properly dealt with and the decisions of the courts below are erroneous and illegal, and after he filed the present writ petition the petitioner got an interim stay order obtained from this Court.
4. In support of his contentions the learned counsel for the petitioners has referred and relied on M.K. Prasad v. P. Arumugam, 2001 (3) AWC 2395 (SC). which has been passed in reference to Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361 ; Krishna v. Chathappan, ILR 3 Mad 269 ; West Bengal v. Administrator, Howrah Municipality and Ors., 1972 (1) SCC 366 ; G. Ramegowda, Major and Ors. v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142 and N. Balakrishnan v. M. Krishnamurthy, 1999 (1) AWC 15 (SC) : 1998 (7) SCC 123.
5. In M.K. Prasad (supra), the Supreme Court in paragraphs 8 and 9 has observed as under :
'8. In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words 'may be admitted' used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361, held :
'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, therefore, 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' With the first question, we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that 'within such period' in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed, he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that 'within such period' means 'the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed', he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his Judgment. That is why it is unnecessary for us to consider what is 'a sufficient cause' in the present appeal. It has been argued before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words 'within such period' is erroneous.
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 v. Chathappan, ILR 3 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.'
'9. Again in State of West Bengal v. Administrator, Howrah Municipality and Ors., 1972 (1) SCC 366 and G. Ramegowda. Major and Ors. v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142. this Court observed that the expression 'sufficient cause' in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial Justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of Justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999 (1) AWC 15 (SC) : 1998 (7) SCC 123. this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Court observed :
'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 a want of acceptable explanation whereas in certain other cases, delay of a 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 revisional jurisdiction, unless the exercise of discretion was on wholly 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 untrammelled by the conclusion of the lower court.'
6. In Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., AIR 1987 SC 1353, the Supreme Court has specifically held that the application of the State Government in respect of condonation of delay has to be treated in the similar way as the application of other litigants and step-motherly treatment to State Government in such matter is not warranted while dealing with application of State Government under Section 5 of the Indian Limitation Act and the Courts should adopt liberal approach.
It was further observed in Mst. Katiji (supra) as under :
'The doctrine of equality before law demands that all litigants including the State as 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 on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos, delay on part of the State is less difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. So also the approach of the Courts must be to do even-handed Justice on merits in preference to the approach which scuttles a decision on merits.' (Para 3)
7. In Ramji Dass and Ors. v. Mohan Singh, 1978 ARC 496, the High Court at its discretion set aside the order setting aside the ex-parte decree passed eight years ago and in appeal before the Supreme Court, the order of the High Court was said not to be in the interest of justice and the Supreme Court held that the Court's discretion should be exercised in favour of hearing and not to shut out the hearing.
8. On the strength of the above observations made by the Supreme Court, the petitioners have submitted that they were restrained to put the true facts before the trial court.
9. I have heard learned counsel for the petitioners and gone through the records. I find that there was sufficient cause and material, on which the application of petitioner under Section 5 of the Indian Limitation Act read with Order IX, Rule 13, C.P.C. could have been allowed. However, hyper-technical view was taken by the trial court in ignoring the facts to be presented by the petitioners, which is not in the interest of justice, therefore, the impugned orders in the present writ petition are set aside and the writ petition is allowed. The trial court is directed to adjudicate the Suit No. 128 of 1980, Smt. Pushpa Saxena v. U.P.S.E.B. and Ors., on merits expeditiously within a period of six months from the date of production of certified copy of this order, with the co-operation of the parties. The information in this regard has to be given to the respondents accordingly.