The Govt. of A.P. Through Secretary, Irrigation Department and ors. Vs. B. Sathaiah and ors. - Court Judgment

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- - we would like to adopt and approve of generally the tests laid down by sir white c. the supreme court said that though it had advocated a 'liberal' approach in this context, the message does not appear to have percolated down to all the other courts in the hierarchy'.it then said that ordinarily, a litigant does not stand to benefit by lodging an appeal late ;refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. on the other hand, it was contended for the state that bad faith, divided loyalties of officers and advisers of government and the 'technicalities of procedure' should yield to considerations promoting public interest and substantial justice. clearly lay down that while the state cannot be treated differently from any other litigant, the court is 'bound' to take into consideration the following factors (i) redtapism in government, (ii) delays in correspondence, (iii) habitual indifference of governmental officials or government pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties; (iv) collusion or negligence by government officials or government pleaders or fraud, (v) damage to public interest or to public funds or interests of the slate, (vi) institutional or bureaucratic procedures as well as delays arising thereon, and (vii) need to render substantial justice on merits.jagannadha rao, j.1. this appeal has been filed by the state (defendant in suit) under clause 15 of the letters patent against the order dated 16-7-1990 of the learned single judge in cm.p.no.8300 of 1990 in the cm.a., refusing to condone the delay under section 5 of the limitation act. the c.m.a. itself arises out of an order in i a.no.272/87 dated 9-12-1987 refusing to set aside an ex parte decree dated 19-2-1987 passed against the state by the learned subordinate judge, karimnagar in os.no.4/85 in a sum of rs. 1,60,001/-. the amount was claimed towards compensation payable for the alleged taking over of wells, said to be existing within certain property acquired under the land acquisition fact. so far as the maintainability of a letters patent appeal against the order passed by the learned single judge in appeals under order 43, rule 1, c.p.c., there is no difficulty in view of the recent full bench judgment of this court in srinivas v. j.n.t. university, 1990(2) aplj 55 (sn), explaining the decision of the supreme court in shah babulal khimji v. jayaben, air l981 sc 1786.2. learned counsel for the respondent (plaintiff) sri p.v. narayana rao, however, raised a preliminary objection, that no letters patent appeal lies against an order refusing to condone delay under section 5 of the limitation act. on the other hand, it is contended by mrs. indira ram, for the government pleader that the letters patent appeal is maintainable. it is further contended by her that the reasons for condonation fall within the parameters laid down by the supreme court recently, in so far as appeals preferred by the state are concerned3. on the basis of the above contentions, two points arise for consideration :(1) whether a letters patent appeal lies at the instance of a defendant, against an order passed by the learned single judge refusing to condone the delay under section 5 of the limitation act in preferring an appeal and(2) whether the reasons for condonation of delay as stated in the affidavit before the learned single judge filed by the state fell within the parameters laid down by the supreme court recently in respect of appeals preferred by the state ?4. point no.1 :-under this point, the question is whether the order refusing to condone delay under section 5 of the limitation act amounts to a 'judgment' within the meaning of the said words in clause 15 of the letters patent (madras), as applicable to this court.5. the supreme court has recently considered this question elaborately in shah babulal khimji's case (2) above referred to. it is necessary to analyse the judgment carefully.6. the supreme court first observed that the tests laid down by sir richard couch. c.j. in justices of peace, calcutta v. the oriental gas co., (1872) 8 beng. l.r. 433) paras 81, 83) were 'every narrow' inasmuch as it was said there that the decision must have affected the merits of the question between the parties or must have determined some right or liability, though the order determining the right or liability, may be either final, preliminary or interlocutory. the supreme court also referred to the views of white, c.j. in tuljaram row v. alagappa chettiar, (1912) ilr 35 mad. 1(fb). and observed (see para 93) :'..........we are inclined to agree generally with these tests though we feel that some of the tests laid down are far too wide and may not be correct'.the tests laid down by white, c.j. are : it is not the form of adjudication which is to be seen, but its actual effect on the suit or proceeding; if, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding, it doubtless amounts to a judgment; similarly, if the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment; any order in an independent proceeding, while, c.j. observed, even if it was ancillary to the suit (not being a step towards the judgment) but is designed to render the judgment effective, can also be termed as 'judgment' (i.e., refusing to grant interim injunction or refusing to appoint receiver); an order may be a 'judgment' even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceeding. while, c.j., further stated that an adjudication based on a refusal to exercise discretion the effect of which was to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a 'judgment'. the supreme court observed that though they were generally in agreement with these tests, 'some of the tests laid down by white, c.j. were far too wide', (see para 93).7. the supreme court observed (para 94) that the lahore, andhra pradesh and latter allahabad views were an adoption of the madras view of white, c.j. so far as the earlier allahabad view is concerned (para 95), it was pointed out that it had dissented from the madras view and that it (the allahabad high court) had also rightly held that the meaning of the word 'judgment' was not the same as in the code of civil procedure which came into existence long after the letter, patent (para 110). the supreme court also said (see para 94) that the 'narrow' view of calcutta high court was followed in bombay.8. the supreme court then referred to the nagpur view in manohar damodar bhoot v. baliram ganpet bhoot, air 1952 nag. 357 and said that hidayatullah, j. (as he then was) 'very pithily' described the essential requisites and the 'exact' meaning of the word 'judgment'. we shall, therefore refer to the final conclusion of hidayatullah, j. (as he then was) reached after an analysis of the entire range of cases (p. 376, para 120), which reads as follows :'a judgment means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so paras the court is concerned, the controversy which is the subject of the action. it does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. the decision need not be immediately executable 'per se'. but if left untouched, must result inevitably without anything further,-save the determination of consequential details-, in a decree or decretal orders, that is to say, an executive document directing something to be done or not to be done in relation to the facts of the controversy. the decision may itself order that thing to be done or not to be done it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of the whole or any part of the controversy'.9. the supreme court in shah babulal khimji's case (2 supra) supra, then referred to the earlier supreme court judgments on the interpretation of clause 15 of the letters patent. in asrumati debi v. kumar rupmor deb raikot, : [1953]4scr1159 , an order refusing transfer of a suit under clause 13 of the letters patent was held no1 to be a 'judgment'. it was also there held that an order rescinding the grant of leave under clause 12 was a 'judgment' as the suit would automatically come to an end ; in union of india v. mohinder supply co., : [1962]3scr497 it was held that 'interlocutory judgments' (i.e., 'decisions though not amounting to decrees which affect the merits of the questions between the parties by determining some right or liability') would be 'judgments'; in state of u.p. v dr. vijay anand, air 1963 sc 940 an order refusing to review the order was held to be a 'judgment'; in shankarlal aggarwala v. shankarlal poddar, : [1964]1scr717 it was held that an order allowing an amendment may be a 'judgment' where it takes away a defence of immunity from any liability by reason of limitation, though not if it allows an amendment for the plaintiff to add a new cause of action or a new relief. radhay shyam v. shyam behari singh, air 1972 sc 2337 was a case where an order in a proceeding under order 21, rule 90 c.p.c. was held to be a 'judgment'. shanti kumar r. canji v. home insurance co. of new york, air 1915 sc 1717 states when an order allowing amendment could be a 'judgment'. some of these types of orders are orders passed on the original side by single judges of the high courts.10. after referring to the above decisions of the supreme court, fazal a!i, j. referred to three categories of cases: (i) a final judgment; (2) a preliminary judgment; and (3) an intermediary or interlocutory judgment. it was stated by fazal ali, j. that the word 'judgment' as defined in the code of civil procedure was rather narrow, that the said word should be widely construed but still there was a concept of finality attached in a broader rather than a narrow sense (para. 113). adverting to ''preliminary judgments.', the supreme court held that if objections as to jurisdiction, res judicata, manifest defects of suit, absence of section 80 notice are held in favour of the plaintiff, the suit is not terminated and, therefore, these are not 'judgments' but if these objections of the defendant are held against the plaintiff, they will be 'judgments'. adverting to 'intermediary or interlocutory judgment' the supreme court said, orders under if uses (a) to (h) of order 43, rule 1 would be 'judgments' but there may also be interlocutory orders (which are not covered by order 43, rule 1)'but which also possess the characterstics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in ancillary proceeding. before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote'.11. an order refusing leave to defend under order 37 c.p.c. would be a 'judgment' but not an order granting leave. an order setting aside exparte decree (which is not appealable under order 43, rule 1) passed by a single judge would still be a judgment, the supreme court observed, as it affects valuable rights of the plaintiff. an order refusing adjournment, refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents after the first date of hearing, an order of costs or an order exercising discretion;'are not 'judgments', because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned, in the appeal against the final judgment passed by the trial judge'.the supreme court said again (para 115) that every interlocutory order cannot be regarded as a 'judgment' but only those orders would be judgments;'which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the parties concerned'.orders relating to admissibility or relevancy of documents would not be judgments as they can be corrected in appeal against final judgments. but an order of amendment of plaint which takes away a vested right of limitation accrued to the defendant would be a judgment, though the order is discretionary.12. finally, fazal ali, j said (para. 118) as follows:'we would like to adopt and approve of generally the tests laid down by sir white c.j. in tuljaram row's case (1912) (ilr 35, mad. 1) (which seems to have been followed by most high courts) minus the broader and wider attributes adumbrated by sir white, c.j...'on the basis of the above said principles laid down by the supreme court, the question will have to be considered as to whether an order refusing to condone delay under section 5 of the limitation act, would be a 'judgment' for purposes of clause 15 of letters patent.13. in our view, an order of the single judge refusing to condone the delay in an appeal by a defendant would terminate the appeal and give finality to the decree in the suit and would directly and immediately affect the valuable right of the defendant to defend the suit. it would permit the immediate execution of the decree in the suit, be it a decree passed on merits or an exparte decree. therefore, the order cannot be said to be not appealable merely because it is an order in an interlocutory application seeking condonation of delay in filing an appeal. the application for condonation of delay is always filed in the appeal itself and is not outside it. in the abstract, when the application for condonation is rejected, it is not as if the court is merely dismissing the application but it is also dismissing the appeal preserved before it as having been 'time barred'.14 in nagendranath v. suresh, air 1932 p.c. 165, the privy council, speaking through sir dinshaw muila. pointed out the effect of an appeal preferred before an appellate court with an application to condone delay under section 5 of limitation act. under section 182(5) of limitation act, 1908, an application for execution of a decree or order could be filed within 3 years of the date of the decree or order or 'where there has been an appeal' the date of the final decree or order of the appellate court . it was argued that the words 'where there has been an appeal' do mean only appeals filed in time but not appeals filed out of time. rejecting the contention, sir dinshaw mulla, observed'there is no definition of 'appeal' in the c.p.c. but there is no doubt that an application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent'.thus, a time-barred memorandum of appeal filed by a defendant is still an appeal whether it was irregular or incompetent-and the refusal to condone delay under section 5 of limitation act is an order passed in the appeal and leads immediately to the rejection of the appeal and also to the confirmation of the decree of the trial court and therefore leads to execution. it terminates the suit and leads to an executable order straightaway. therefore, such an order is appealable under clause 15 of the letters patent. it satisfies the tests laid down by hidayatullah, j, (as he then was) in manohar damodar bhoot's case (5 supra) in the nagpur high court, and also the tests laid down by fazal ali, j in the shah babulal khitnji's (2 supra) case in the supreme court.15. we, therefore, agree with the view of the division bench of this court in v. rangacharyulu v. s. gnaneswar, : air1976ap301 consisting of sambasiva rao, acj & muktadar, j. and also of the bombay high court in nagindas motilal v. nilaji moroba, ilr 48 bom. 442 = air 1924 bom. 399 holding that orders of rejection of applications for condonation of delay under section 5 of the limitation act are appealable under clause 15 of letters patent. we respectfully dissent from the judgments of the calcutta high court in gobinda lal v. shiba das, (1906) 33 cal. 1323 and full bench judgment of the allahabad high court in mt. shahzadi begum v. alakh nath, air 1935 all. 620 (2).16. it is no doubt true that the supreme court in shah babulal khimji's case (2 supra) referred to the full bench of the allahabad high court in mt. shahzadi begum's case (16 supra) (in paras 95 and 110 of the air) but the reference (in para 95) is to the observation that the madras view is too wide and the reference (in para 110) is on the point that the word 'judgment' in clause 15 of the letters patent cannot have the meaning given to it in the c.p.c. which is a later statute. the supreme court nowhere approved the decision in the allahabad case on facts, viz., as to whether refusal of an application under section 5 of the limitation act, was not a 'judgment'. in fact, the supreme court explained the circumstances as to when an interlocutory order could be a judgment such as when it shuts out or results in foreclosure of the entire defence of the defendant in the suit. we, therefore, reject the contention of the respondent-plaintiff based on the allahabad full bench decision.17. for the aforesaid reasons, we follow the principles laid do wit by the supreme court in shah babulal khimji's case (2 supra) and hold that the letters patent appeal is maintainable. point no.1 is held accordingly.18. point no.2:- the question is whether the court has to bear in mind any special factors while deciding an application for condonation of delay filed on behalf of the state under section 5 of the limitation act and whether, taking into account such factors would, in itself, amount to treating the state on a special footing as compared to ordinary litigants.19. in this context, it is, in our view, necessary to bear in mind the following observations of the supreme court in three recent judgments. in state of u.p. v. bahadur singh, : 1983ecr1556d(sc) the supreme court held that in matters such as a land ceiling law 'there are no two parties as is the case in a litigation between two parties wherein each would be prosecuting and watching the proceedings regularly. further, the departmental authority has to be apprised of adverse decision and further decision has to be taken whether the case is one required to be taken to higher court. not that the departmental authorities charged with a duty to implement the law should not be vigilant; but one aspect cannot be overlooked that a departmental authority may delay the moving of higher court for oblique motives and public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. these are relevant considerations which must enter judicial verdict before rejecting such cause on the ground of delay'. in collector, land acquisition, anantnag v. katiji, : (1987)illj500sc the supreme court posed the following question:'whether or not to apply the same standard in applying the 'sufficient cause' test to all the litigants regardless of their personality in the said context is another'.20. the supreme court observed that the word 'sufficient cause' in section 5 is adequately elastic to enable the court to apply the law in a meaningful manner which sub serves the ends of justice, that being the life-purpose for the existence of the institution of courts. the supreme court said that though it had advocated a 'liberal' approach in this context,'... the message does not appear to have percolated down to all the other courts in the hierarchy'.it then said that ordinarily, a litigant does not stand to benefit by lodging an appeal late ; 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: 'every day's delay must be explained' does not mean that a pedantic approach should be made. the doctrine must be applied in a rational commonsense pragmatic manner ; when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred inasmuch as the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay ; 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. the supreme court said that no doubt, the fact that it was the 'state' that was seeking condonation of delay and not a private party was altogether irrelevant. but, there is no warrant for according a step-motherly treatment when the 'state' is the applicant praying for condonation of delay. they pithily observed that 'experience shows that on account of impersonal machinery (no one is in-charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the interested 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 prove. in any event, the state which represents collective cause of the community, does not deserve a litigant non grata status'. again in g. ramegowda v. spl. l.a.o. bangalore, : [1988]3scr198 the argument was that if government pleaders did not discharge their duty properly, that was beside the point as it would be a matter of 'internal administration'. if government was, it was argued, not able to set its own 'house' in order, nobody could give it any indulgence. on the other hand, it was contended for the state that bad faith, divided loyalties of officers and advisers of government and the 'technicalities of procedure' should yield to considerations promoting public interest and substantial justice. government, in that case, narrated the chronological sequence of events and the somewhat protracted correspondence between the government pleader and the government and the difficulties faced by the administration in even ascertaining the correct state of affairs, owing to the negative and evasive attitude of government pleaders. there was also allegations of fraud on the part of the government pleaders. the supreme court pointed out : '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'.the court then observed that where fraud or bad faith was proved, public interest clearly suffered. the above factors are 'peculiar to and characteristic of the functioning if the government'. there is procedural red-tape and'a certain amount of latitude is, therefore, not impermissible'.due recognition of these limitations on government functioning of course, within a reasonable limit is necessary if the judicial approach is not to be rendered unrealistic. the supreme court observed :'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'. a bureaucratic organ 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. a division bench of this court consisting of p.a. choudhary, j and one of us (jagannadha rao, j) took a similar view in tahsildar, l.a. o. v. suresh babu, 1986 (2) alt 419.21. the above decisions of the supreme court. clearly lay down that while the state cannot be treated differently from any other litigant, the court is 'bound' to take into consideration the following factors (i) redtapism in government, (ii) delays in correspondence, (iii) habitual indifference of governmental officials or government pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties; (iv) collusion or negligence by government officials or government pleaders or fraud, (v) damage to public interest or to public funds or interests of the slate, (vi) institutional or bureaucratic procedures as well as delays arising thereon, and (vii) need to render substantial justice on merits. it is not as if, fraud on the part of the government officials or pleaders has necessarily to be proved by the government in every case. we do not think that the learned single judge who decided state of a.p. v. mohd. mohiuddim khan 1990 (i) an. w.r. 746, laid down any such inflexible principle.22. bearing these factors in mind, we notice that the trial court rejected i.a.no.272/87 filed under order 9, rule 13 by the state by an order dated 9-12-1987. certified copy was applied for. lost after being sent for high court and again applied for on 6-4-90 and were received on 23-4-90 before summer vacation and the cm.a. was filed in this court on 23-6-90, a few days after vacation. it was stated that the opinion of the government pleader for filing appeal was given on 18-2-1988, the record was sent to the special officer, government pleaders' office, high court, with a request to obtain the opinion of the government pleader for filing the appeal. 'thereafter, several letters dated 31-5-88, 11-8-88, 1789 and 21-7-89 for future course of action were addressed and then a special deputy tahsildar was specially deputed to contact the special officer personally by an order dated 20-3-90. it was then noticed that the entire file was misplaced. therefore, fresh certified copies were applied for and obtained on 23-4-90 and appeal was filed on 23-6-90.23. in our view, there was consistent action taken for filing the appeal and as the file was itself lost, fresh application for copies was filed.24. the way in which the government pleaders' office in the high court of a.p. is kept, the heavy filing of writ petitions, the extreme paucity of space and congestion, the way government pleaders keep on changing frequently, a department short of hands, little wonder that files are lost or appeals are filed with delay. all the ills of governmental departments ills of all shades and colours-afflict this important organ of the government. surely, the correspondence in this case does not show that government wanted not to file an appeal initially and decided to file the appeal later after delay. the entire delay is institutional. even the short delay after the re-opening of court after summer vacation on 23-6-90 is obviously covered by the above factors. we, therefore, hold that the learned single judge erred in rejecting the cm.a. as time-barred.25. we, accordingly, allow the l.p.a., condone the delay and direct the cm.a. (s.r. 3195/1990) to be registered. no costs.