A.S. Naidu, J.
1. This petition has been filed under Section 5 of the Limitation Act inter alia praying for condonation of delay in filing Review Petition No. 25 of 2005.
After being unsuccessful before the Supreme Court in Special Leave to Appeal (Civil) No. 183 of 2003, the petitioner approached this Court by filing a Review Petition under Section 114 of the Code of Civil Procedure, registered as Review Petition No. 25 of 2005, inter alia, praying to review the judgment of this Court passed on 11th December, 2002 in OJC No. 7646 of 1998. On verification, the Stamp Reporter has pointed out that there is a delay of two years and fifty-eight days in preferring the Review Petition. The present application has been filed under Section 5 of the Limitation Act read with Rule 27(A) of Chapter VI of the Orissa High Court Rules with a prayer to condone the delay in filing the Review Petition and to hear the Review Petition on merit.
2. In para-5 of the Misc.Case it is asserted that though the application for review of the judgment dated 11th December, 2002 ought to have been filed within thirty days from the date of the said judgment, since the matter was carried to the Supreme Court in SLP (Civil) No. 183 of 2003 which was pending there till 21st February, 2003 when the same was dismissed at the admission stage, and in consonance with the ratio of the decision of the Supreme Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr., reported in (2000) 6 SCC 359, the petitioner has approached this Court seeking review of the judgment of this Court. According to the petitioner, as he was prosecuting the lis bona fide and with due diligence before the Supreme Court till 21st February, 2005 and the Review Petition was filed on 9th of March, 2005, this Court may take a liberal view and condone the delay in order to give substantial justice.
3. On receiving notice, opposite party No. 2, Puri-Konark Development Authority, entered appearance through its counsel and filed a counter-affidavit opposing the prayer for condonation of delay.
4. Mr. Patnaik, learned Senior Advocate appearing for the petitioner, submitted that certain documents which throw substantial light and were very much necessary for effectual adjudication of the dispute could not be produced before this Court at the time of hearing of the Writ application. According to him, if this Court would have had the occasion to peruse the said documents, there was every chance that this Court might have arrived at a different conclusion in its judgment. Non-production of the said documents affected the decision in the Writ application and therefore it is a fit case where the judgment passed by this Court in the said Writ application may be reviewed. Mr. Patnaik further submitted that the SLP filed before the Supreme Court was within time, but then the said petition was dismissed by the Supreme Court at the very threshold at the admission stage and thus the doctrine of merger will not apply to the present case and, as has been held by the Supreme Court in the Kunhayammed Case supra this Review Petition is maintainable and the same may be decided on merit after condoning the delay.
5. Mr. Padhi, learned counsel for opposite party No. 2, at the other hand strongly repudiated the contention raised by Mr. Patnaik. According to Mr. Padhi, the Supreme Court was pleased to issue notice to the respondents, who are opposite parties, here, on the question of admission of the SLP and was further pleased to pass an interim order. After receiving notice the opposite parties appeared and put forth their case. After hearing the counsel for both sides the Supreme Court passed the following order on 21st February, 2005 :-
'Upon hearing counsel the Court made the following
ORDER
We see no reason to interfere.
The Special Leave Petition is disallowed.'
6. Mr. Padhi submitted that the aforesaid order itself would reveal that the Supreme Court applied its mind, heard the parties at length and on being satisfied that there was no reason to interfere rightly dismissed the SLP. Such disposal of the SLP according to Mr. Padhi cannot be said to be dismissal of the SLP at the very threshold. On the other hand, the Supreme Court after giving opportunity of hearing to both sides and being apprised of the facts and points of law canvassed, and on being satisfied that there was no reason to interfere with the reasonings and conclusion arrived at by this Court in the Writ application declined to interfere with the same.
7. Apart from the aforesaid submission, Mr. Padhi also forcefully submitted that the documents which the petitioner seeks to bring to the notice of this Court in the present Review Petition were, in fact, filed before the Supreme Court. Thus the submission that the delay in filing the Review Petition had occasioned due to bona fide reasons and in spite of due diligence of the petitioner in prosecuting the lis cannot be accepted. According to Mr. Padhi, even though the Writ application was disposed of by this Court on 11th of December, 2002, the SLP had been preferred after expiry of period of limitation prescribed to prefer a Review Petition. Thus it cannot be said that the petitioner was prosecuting the lis bona fide and with due diligence.
8. We have heard the learned counsel for the parties at length. The petitioner had filed OJC No. 7646 of 1998 before this Court challenging the action taken by opposite party No. 2, Puri-Konark Development Authority, under Section 91 of the Orissa Development Authority Act for demolition of a building constructed by him without obtaining due permission and/or sanction of plan, and also violating the provisions of the Coastal Regulation Zone, as also the guidelines laid down by the Supreme Court. In the said Writ application a plea was taken by the petitioner that the building was constructed over the plot in question which was used for the purpose of human habitation long since and the construction was not made in violation of the norms and conditions contemplated therefor.
9. The opposite parties appeared and filed their counter affidavit bringing to the notice of the Court that the construction was made without obtaining prior permission and/or had been made beyond the norms of the Development Authority Act and that it grossly violated the provisions made in the Coastal Zone Regulations. It was further alleged that under the cover of the interim order passed by this Court staying demolition of the said construction, the petitioner went on making further construction. This Court by reasoned judgment dismissed the Writ application and directed the opposite parties to proceed in consonance with law and to carry out the demolition as proposed and report compliance. The said judgment of this Court was the subject-matter of the aforesaid SLP.
10. Without entering into the arena of controversy and/ or the contentions raised on merit by the parties, we feel that it would be just and proper to concentrate on the petition (Misc. Case) filed by the petitioner for condonation of delay in filing the Review Petition.
11. According to Mr. Patnaik, the Courts must do substantial justice and approach the question of 'sufficient cause' for condonation of delay liberally, inasmuch as a justice-oriented approach is necessary while deciding an application filed under Section 5 of the Limitation Act. It was submitted that the expression 'sufficient cause' used in the Statute is required to be interpreted liberally. In the case at hand, according to Mr. Patnaik, the petitioner was prosecuting the lis before the Supreme Court bona fide and with due diligence. The Supreme Court having dismissed the SLP at the admission stage, there was no bar for the petitioner to file the Review Petition before this Court which is otherwise maintainable, as has been held by the Supreme Court in the aforesaid Kunhayammed case, and it is a fit case where the delay may be condoned to give substantial justice to the petitioner, specially in view of the fact that the doctrine of merger of the decision of this Court with that of the Supreme Court will not apply. In support of such submission, Mr. Patnaik relied upon a decision of this Court reported in 1999 (I) OLR 507 (Singal Trading Co. v. OST Tribunal and Anr.).
12. Mr. Patnaik also relied upon a decision of the Supreme Court reported in AIR 1986 SC 987 (Nebha & Co. v. State of Gujarat) and submitted that pendency of the SLP may be taken as sufficient ground for condoning the delay. In support of his submission, Mr. Patnaik also relied upon a decision of the Supreme Court reported in AIR 1962 SC 361 (Ramlal v. Rewa Coalfields Ltd.).
13. Mr. Padhi, at the other hand, submitted that the ratio of the decision of Kunhayammed case (supra) cannot be stretched and applied to the facts and circumstances of the present case for two reasons viz; (i) there was no delay in filing the Review Petition in the said case; and (ii) by the Amendment Act 36 of 1986, Kerala Government had amended the relevant statute and had vested power upon Government to file appeal or application for review in certain cases. According to him, in the present case it cannot be said that the delay in filing the Review Petition was due to any bona fide ground; inasmuch as the SLP was not dismissed in limine. More so, the documents on the basis of which the petitioner seeks review of the judgment of this Court were very much available with him and had been filed before the Supreme Court, and last but not the least, there was inordinate delay, i.e. more than two years, in filing the Review Petition. Mr. Padhi also submits that in Kunhayammed case (supra) the Supreme Court held that only in cases where Review Petitions were filed before filing of SLPs and the SLPs were dismissed in limine at the admission stage the doctrine of merger would not apply and/or there would be no bar to prosecute the Review Petition. As such, Mr. Padhi submitted, that the contentions raised by Mr. Patnaik cannot be accepted. In the present case, the Review Petition is not maintainable and, as such, this Court is not required to take a liberal view to condone the delay.
14. Mr. Padhi relied upon a decision of the Supreme Court reported in 1998(7) SCC 386(Abbai Maligai Partnership Firm v. K. Santhakumaran) wherein in para-4 it was held :-
'The manner in which the learned Single Judge of the High Court exercised the review jurisdiction after the special leave petitions against the self-same order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7.1.1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the self-same order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the Court and indulged in vexatious litigation. We strongly deprecate the matter (sic) in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court...'
15. It appears that the decisions in Kunhayammed and Abbai Maligai cases (supra) were taken note of by the Supreme Court in the case of K. Rajamouli v. A.V.K.N. Swamy, reported in (2001) 5 SCC 37, wherein it was held as follows :-
'Following the decision in the case of Kunhayammed we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.'
The observations made in K. Rajamouli case (supra) makes the position crystal clear.
16. To attract the provisions of Section 5 of the Limitation Act, a suitor is under an obligation to show that he had sufficient cause for not preferring the application within the period of limitation prescribed under the Act or under any other statute governing filing of the said application. The question of existence of 'sufficient cause' has to be decided on the basis of the facts and circumstances of each case. 'Sufficient cause' within the meaning of the Section must be a cause which was beyond the control of the party invoking aid of the Section and the test to be applied would be to see as to whether it was a bona fide cause, inasmuch as nothing could be considered to be bona fide which is not done with due care and attention. Therefore, it all depends upon the circumstances of a case where the cause advanced by a party can be said to be really beyond its control preventing it from approaching the Court in time.
17. Considering the facts and circumstances of the present case in the touchstone of the observations made above, it appears that the documents basing upon which review of the judgment of this Court is sought, were not only available with the petitioner, but the same had been filed before the Supreme Court in the SLP. The Review Petition was not filed within the prescribed time and was, in fact, filed after dismissal of the SLP by the Supreme Court. The SLP was dismissed only after hearing the parties with the observation 'We see no reason to interfere.' No doubt Section 5 of the Limitation Act gives the Courts a discretion which is to be exercised in the way in which judicial power and discretion are to be exercised. It is not open to the Court to enlarge the time allowed by law only on equitable ground as argued by Mr. Patnaik. The period of limitation to prefer a Review Petition cannot be extended simply because the petitioner's case is hard and calls for sympathy, nor will the Courts extend the period of limitation merely out of benevolence at the party seeking the relief. A Court granting such indulgence must be satisfied that there was diligence on the part of the party and that he was not guilty of any negligence whatsoever.
18. It is well settled that compassion and sympathy have no role to play where a Rule of Law is required to be enforced. In the present case, the petitioner has not acted bona fide and with due diligence. He preferred SLP before the Supreme Court basing upon the documents, now relied upon in the Review Petition. An interim order was passed in the SLP. The parties were heard after notice and the SLP was dismissed. Thereafter the petitioner, as has been submitted by Mr. Padhi, with the object of keeping the ball rolling and thereby circumventing the implementation of the orders preferred the present Review Petition after two years and fifty-eight days beyond the prescribed period of limitation.
19. After hearing the learned counsel for the parties patiently, perusing the materials meticulously and considering matter diligently, for the reasons stated above, we are not satisfied with the contentions advanced by the learned counsel for the petitioner. According to us there is no sufficient ground to condone the delay in filing the Review Petition. We decline to condone the delay.
The Misc.Case is, accordingly, dismissed. R.N. BISWAL, J. I agree.