# Savitri Devi & Anr v. Addl. Commissioner, Judicial Ii, Lko & Ors

- **Citation:** (2021) 6 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-26
- **Case number:** Misc. Single No. 11021 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/savitri-devi-anr-v-addl-commissioner-judicial-ii-lko-ors-47021
- **Pages:** 6

## Headnote

C.S.C.

(a)
Practice
&
Procedure
-
Delay
Condonation - The Additional Commissioner
failed to examine the day-to day delay of eight
years explained in filing the recall application.
The matter has been remitted back to examine
the correctness of the explanation given by the
petitioner on the subject of delay condonation.
(Para 16)

Writ Petition Allowed. (E-8)

List of Cited cases:-

## Text

210 INDIAN LAW REPORTS ALLAHABAD SERIES
bearing on trial are not amenable to the writ
of certiorari, hence the third question
propounded above is also decided in
negative.

33. The petitioners in judicial custody
have thus a remedy of bail under Section
439 Cr.P.C. whereas the petitioners who
are not arrested are also at liberty to invoke
the remedy of anticipatory bail under
Section 438 Cr.P.C.

34. The writ petition is accordingly
dismissed without prejudice to the remedy
as above.
----------
(2021)06ILR A210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Misc. Single No. 11021 of 2021

Savitri Devi & Anr. ...Petitioners
Versus
Addl. Commissioner, Judicial Ii, Lko & Ors.
 ...Respondents

Counsel for the Petitioners:
Sarvesh Kumar, Hari Om Pandey

Counsel for the Respondents:
C.S.C.

(a)
Practice
&
Procedure
-
Delay
Condonation - The Additional Commissioner
failed to examine the day-to day delay of eight
years explained in filing the recall application.
The matter has been remitted back to examine
the correctness of the explanation given by the
petitioner on the subject of delay condonation.
(Para 16)

Writ Petition Allowed. (E-8)

List of Cited cases:-
1. State (NCT of Delhi) Vs Ahmed Jaan (2008)
14 SCC 582

2. Collector, Land Acquisition, Anantnag & anr.
Vs Mst. Kaitji & ors. AIR 1987 SUPREME COURT
1353

3. K. Sabbarayudu & ors. Vs Special Deputy
Collector (Land Acquisition) (2017) 12 SCC 840

4. N. Balakrishnan Vs M. Krishmamurthy

5. New India Insurance Co. Ltd. Vs shanti
Mishra

6. Brij Indar Singh Vs Kanshi Ram

7. Shakuntala Dei Jain Vs Kunta Kumari

8. Concord of India Insurance Co. Ltd. Vs
Nirmala Devi

9. Lala Mata Din Vs A.Narayanan

10. State of Kerala Vs EK. Kuriyipe

11. Milavi Devi Vs Dina Nath

12. O.P. Kathpalia Vs Lakhmir

13. Ummer Vs Pottengal Subida & ors. (2018)
15 SCC 127

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Hari Om Pandey, learned
counsel for the petitioners and Sri Raj Bux
Singh, learned Additional Chief Standing
Counsel for opposite party Nos. 1 to 3 through
video conferencing and perused the record.

2. For the order proposed to be passed
issuance of notice to opposite party Nos. 4
and 5 is hereby dispensed with.

3. The petitioner has filed this petition
for following reliefs:

"1. To issue a writ, direction, or order
in the nature of Certiorari quashing of the
6 All. Savitri Devi & Anr. Vs. Addl. Commissioner, Judicial Ii, Lko & Ors.
211
impugned order dated 05.04.2021 passed
by the Additional Commissioner Judicial
Lucknow Region Lucknow in Revision No.
967/2002-03: Savitri Devi and another Vs.
Dr. Ram Nrayan Verma. (contain as
Annexure No.1)."

2. To issue a Writ, direction, or order
in the nature of Mandamus directing the
Additional Commissioner Judicial IInd
Lucknow Region Lucknow to decide the
Revision No. 967/2002-03, Savitri Devi
and Another Vs. Dr. Ram Nrayan Verma
pending before him on merit.

3. To issue any such other writ,
direction, or order as this Hon'ble Court
deems fit and proper."

4. Learned counsel for the petitioners
submit that the petitioners had purchased land
of Gata No. 92 area 0.089 situated in village
Mahmudabad Tehsil Mahmudabad, District
Sitapur by way of the registered sale deed
dated 19.09.1991 and 17.08.1991 from one
Mahant Vishan Das and came into possession
over the said land. The petitioners application
for mutation under Section 33/39 U.P. Land
Revenue Act was allowed by the Tehsildar
by order dated 21.10.1994, against which the
opposite party No.4 filed appeal No. 341/181,
which
was
allowed
by
order
dated
23.10.2002 by the Sub-Divisional Magistrate.
The petitioners preferred Revision No.
967/02-03: Savitri Devi and others Versus
Dr. Ram Narayan Verma, which was
dismissed for non-prosecution by order dated
14.09.2010, against which the petitioners
filed an application for setting aside of the
order dated 14.09.2010, on 29.03.2019 along
with an application for condonation of delay,
which has been rejected by the order dated
05.04.2021, under challenge in this petition.

5. Learned counsel for the petitioners
submits that the order dated 05.04.2021 has
been passed on the ground that there is
delay of about eight years in filing of recall
application, but the day-to-day delay has
not
been
explained
by
giving
any
satisfactory explanation.

6. Learned counsel for the petitioners
submits that the petitioners have explained
the cause, on account of which the delay
occurred, which should have been considered
liberally in favour of condonation of delay.
The petitioners are poor village ladies and
they were assured by their counsel that when
the revision was listed for hearing after
receipt of the lower court record, he would
inform, but as they did not receive any
information the petitioners could not appear.
He submits that the courts should endeavour
to decide the lis on merits, instead of rejection
on the ground of limitation. The impugned
order is also non-speaking as the cause shown
by the petitioners for condonation of delay
has not been considered.

7. Learned counsel for the petitioners
has placed reliance on the judgment of
Hon'ble Supreme Court in the Case of State
(NCT of Delhi) Versus Ahmed Jaan
reported in (2008) 14 SCC 582 in support of
his submission.

8. Sri Raj Bux Singh, learned
Additional Chief Standing Counsel submits
that as there is inordinate delay of eight years
in filing the application for setting aside the
order, the Additional Commissioner rightly
rejected the application for recall and for
condonation of delay.

9. I have considered the submissions
advanced by the learned counsel for the
parties and perused the material on record.

10. The proof by sufficient cause is a
condition
precedent
for
exercise
of
extraordinary discretion vested in the
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Court. What constitutes sufficient cause
cannot be laid down by hard-and-fast rules,
but the discretion given by the Section 5 of
the Limitation Act, should not be defined
or crystallized, so as to convert a
discretionary matter into a rigid rule of law.
Whether or not there is sufficient cause for
condonation of delay is a question of fact
dependent upon the facts and circumstances
of the particular case.

11. It has been well settled that the term
"sufficient cause" is to receive liberal
construction to advance substantial justice,
when no negligence, inaction or want of bona
fide is attributable to the applicant, seeking
condonation of delay. The Courts should
adopt
a
justice-oriented
approach
in
condoning the delay, as refusal to condone
delay in many cases may result into
miscarriage of justice.

12. In Collector, Land Acquisition,
Anantnag and another Vs. Mst. Katiji and
others, AIR 1987 SUPREME COURT
1353, the Hon'ble Supreme Court held that
the legislature has conferred the power to
condone delay by enacting Section 5 of the
Indian Limitation Act, 1963 in order to
enable the Courts to do substantial justice to
parties by disposing of matters on 'merits'.
The expression 'sufficient cause' is adequately
elastic to apply the law in a meaningful
manner, which subserves the ends of justice.
The relevant part of paragraph 3 of the
Collector, Land Acquisition, Anantnag
(supra) is being reproduced as under:-

"3. The legislature has conferred the
power to condone delay by enacting S. 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 lifepurpose 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 nondeliberate 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. "
6 All. Savitri Devi & Anr. Vs. Addl. Commissioner, Judicial Ii, Lko & Ors.
213

13. In K. Subbarayudu and others
Vs. Special Deputy Collector (Land
Acquisition) (2017) 12 SCC 840, Hon'ble
Supreme Court in paragraph 11 has held
that the term "sufficient cause" is to receive
liberal construction so as to advance
substantial justice, when no negligence,
inaction or want of bona fides is
attributable to the appellants, the Court
should adopt a justice-oriented approach in
condoning the delay.

14. In the Case of State (NCT of
Delhi) Versus Ahmed Jaan reported in
(2008) 14 SCC 582, upon which the
reliance has been placed by learned counsel
for the petitioners, also it has been held that
Section 5 of the Indian Limitation Act is to
be construed liberally to do substantial
justice to the parties. It has also been held
that what counts is not the length of the
delay, but the sufficiency of the cause
shown. The relevant part of the paragraph
11 is reproduced as under:

"11. "8. The proof by sufficient cause
is a condition precedent for exercise of the
extraordinary 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. Balakrishnan v.
M. Krishmamurthy 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 working of the
Government
without
being
unduly
indulgent to the slow motion of its wheels.

9. What constitutes sufficient cause
cannot be laid down by hard-and- fast
rules. In New India Insurance Co. Ltd. v.
Shanti
Misra
this
Court
held
that
discretion given by Section 5 should not be
defined or crystallised so as to convert a
discretionary matter into a rigid rule of law.
The expression 'sufficient cause' should
receive a liberal construction. In Brij Indar
Singh v. Kanshi Ram it was observed that
true guide for a court to exercise the
discretion under Section 5 is whether the
appellant acted with reasonable diligence in
prosecuting the appeal. In Shakuntala
Devi Jain v. Kuntal Kumari' a Bench of
three Judges had held that unless want of
bona fides of such inaction or negligence as
would deprive a party of the protection of
Section 5 is proved, the application must
not be thrown out or any delay cannot be
refused to be condoned.

10. In Concord of India Insurance
Co. Ltd. v. Nirmala Devi which is a case
of negligence of the counsel which misled a
litigant into delayed pursuit of his remedy,
the default in delay was condoned. In Lala
Mata Din v. A. Narayanan this Court had
held that there is no general proposition
that mistake of counsel by itself is always
sufficient cause for condonation of delay. It
is always a question whether the mistake
was bona fide or was merely a device to
cover an ulterior purpose. In that case it
was held that the mistake committed by the
counsel was bona fide and it was not
tainted by any mala fide motive.

11. In State of Kerala v. EK.
Kuriyipe it was held that whether or not
214 INDIAN LAW REPORTS ALLAHABAD SERIES
there is sullicient cause for condonation of
delay is a question of fact dependent upon
the
facts
and
circumstances
of
the
particular case. In Milavi Devi v. Dina
Nath* it was held that the appellant had
sufficient cause for not filing the appeal
within the period of limitation. This Court
under Article 136 can reassess the ground
and in appropriate case set aside the order
made by the High Court or the tribunal and
renmit the matter for hearing on merits. It
was
accordingly
allowed, delay
was
condoned and the case was remitted for
decision on merits.

12. In O.P. Kathpalia v. Lakhmir
Singh a Bench of three judges had held that
if the refusal to condone the delay results in
grave miscarriage of justice, it would be a
ground to condone the delay. Delay was
accordingly condoned. In Collector, Land
Acquisition Vs. Katiji a Bench of two
judges considered the question of limitation
in an appeal filed by the State and held that
Section 5 was enacted in order to enable
the court to do substantial justice to the
parties by disposing of matters on merits.
The
expression
'sufficient
cause'
is
adequately elastic to enable the court 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. This
Court reiterated that the expression '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, common sense, pragmatic manner.
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. 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 serous
risk. Judiciary is not respected on account
of its power to legalise 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. The delay was accordingly
condoned."

15. A perusal of the order under
challenge shows that the application for
condonation of delay has been rejected on
the ground that the petitioners did not
explain the day-to-day delay. In the case of
Collector, Land Acquisition, Anantnag
(supra) the Hon'ble Supreme Court has
clearly held that "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. Recently
in the case of Ummer Vs. Pottengal Subida
and Others, (2018) 15 SCC 127, the
Hon'ble Supreme Court has held that "one
6 All. M/S Kkspun India Ltd. Vs. U.P. Jal Nigam & Anr.
215
cannot now dispute the legal proposition
that the earlier view of this Court that the
appellant was required to explain the delay
of each day till the date of filing the appeal
has since been diluted by the later decisions
of the Apex Court and is, therefore, held as
no longer good law".

16. This court finds that the petitioners in
their application for condonation of delay
indicated reasons for the delay in filing the
application for setting aside of the order dated
14.09.2010. The Additional Commissioner
(Judicial), Lucknow unfortunately did not deal
with those explanations and has merely stated
that no justifiable reason has been stated for
day-to-day
delay.
The
Additional
Commissioner was required to examine
correctness of the explanation given by the
petitioners in their application and was required
to record his specific finding on consideration
on those reasons and keeping in view the
principles of law, on the subject of condonation
of delay, if the explanation furnished by the
petitioners was plausible or not and constituted
"sufficient cause" or not.

17. In view of the above legal position
and the law laid down, I am of the considered
opinion that the Additional Commissioner
(Judicial) in passing the order under challenge,
rejecting
the
petitioners'
application
for
condonation of delay and consequent thereupon
in rejecting the application for setting aside the
order
dated
14.09.2010
has
committed
illegality. The cause shown in the application
should have been considered and on such
consideration, keeping in view the settled law
on condonation of delay after recording specific
finding if the cause shown was or was not
sufficient, the applications should have been
decided.

18. For the aforesaid reasons, the order
under challenge deserves to be quashed, the
writ petition deserves to be allowed and the
matter deserves to be remitted to the Additional
Commissioner for decision afresh on the
petitioners' application for condonation of
delay.

19. Accordingly, the petition succeeds
and is allowed. The impugned order dated
05.04.2021
passed
by
the
Additional
Commissioner (Judicial) Lucknow Region
Lucknow-opposite party No.1 in Revision No.
967/2002-03: Savitri Devi and another Vs. Dr.
Ram Nrayan Verma. (contain as Annexure
No.1) is hereby quashed. The matter is
remitted
to
the
court
of
Additional
Commissioner Judicial Lucknow Region
Lucknow for decision afresh on the petitioners'
application for condonation of delay, in
accordance with law keeping in view the
observations made hereinabove, with due
opportunity
of
hearing
to
the
parties
concerned, expeditiously within a period of
three months from the date of providing of
copy of this order before the said court. If the
application for condonation of delay is
allowed the petitioners' application for setting
aside of the order dated 14.09.2010 shall also
be considered and decided in accordance with
law with due opportunity of hearing to the
parties concerned.

20. No orders as to costs.
----------
(2021)06ILR A215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.06.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE SAURABH LAVANIA, J.

Misc. Bench No. 12227 of 2021

M/S Kkspun India Ltd. ...Petitioner
Versus
U.P. Jal Nigam & Anr. ...Respondents