STATE Vs. DHAJADHARI RAI

JUDGEMENT

(1.) Heard. The present appeal was filed on 10-4-1981. Admittedly, the limitation for filing the appeal expired on 27-3-81. The appellant filed this present application for condoning the delay on 30-8-83. The question is whether there was sufficient cause for not filing the appeal on 27-3-81 and prior to 27-3-81. According to the appellant-State of Bihar, the delay was due to observing all the formalities which had to be done in the offices of the State of Bihar before the filing of the appeal. It appears that prior to 27-3-81, the Law Secretary to the State Government had referred the matter to the Advocate General and the opinion of the Law Officer of the State Government was sent to the Law Department, the file appears to have been received back in the Law Department on 24-3-81, and though the Officers of the Law Department must be credited with the knowledge that the appeal would become time barred, if it was not filed till 27-3-81, the file was not sent to the office of the Advocate General for filing the appeal till after 6-4-81. The explanation given for this period in the petition and the supplementary affidavits is that the Law Secretary was busy in some important work and he was out and, therefore he signed the file only on 6-4-81. We are not told what was the important work in which the Law Secretary was engaged. As regards the Law Secretary being out on tour, the only dates about which there is a specific statement are 30-3-81 and 1-4-81. There is, therefore, no adequate explanation for the period between 24-3-81 and 29-3-81. It is well settled that each days delay after and between the last date of limitation and the date of filing should be explained. It is true that the nature of the functioning of the Government is such that a decision can be arrived at only after the file has moved through the various officers. But the decision regarding the filing of appeal or a proceeding in court which may become time barred must ordinarily be arrived at in time for the filing of the appeal before the expiry of the date of limitation. If the Courts were to accept the mere procedure of the working in Government offices as sufficient cause for the delay in filing of the appeal, then the delay would have to be condoned in almost every case and the period of limitation prescribed for filing of the appeal would for the State Government become a misnomer. We are not told when the file reached the Law Department for the first time, but it had reached the office of the Commissioner, Patna Division, on 20-2-81. There was sufficient time for the office of the Commissioner of Patna Division to transmit the file to the Law Department in time for consulting the Advocate General and to take decision in the matter and cause the appeal be filed prior to the expiry of the period of limitation on 27-3-81. In my opinion, therefore, sufficient cause for condoning the delay has not been made.

(2.) In Ram Lal's case. AIR 1962 SC 361 the Supreme Court emphasised that even after sufficient cause was shown a party is not entitled to the condonation of delay in filing the appeal etc. as a matter of right, and the Court has a discretion in the matter. Even if I was of the opinion that sufficient cause had been made out, it is not a fit case in which the discretion to condone the delay should be exercised. The appeal was filed on 10-4-81, though the limitation for filing the appeal had expired on 27-3-81. The appellant-State of Bihar which had competent legal advice at its disposal must be credited with the knowledge that the appeal was time barred on the date of its presentation especially as the appeal was filed without Stamp Report. Assuming that the knowledge could not be attributed to the appellant on the date of filing of the appeal it must be attributed to it on 21-9-82, when the Stamp Report dated 14-7-81, which stated both that the limitation expired on 27-3-81 and that the Court fee on the memorandum of appeal was deficit was placed before the Deputy Registrar on the point of deficit court-fee and accepted by the learned Advocate for the appellant. But, the present application under S.5 of the Limitation Act was filed only on 30-8-83. Prior to that on 29-4-83, two weeks time, as prayed for, was granted to the appellant by a Bench of this Court to file a limitation petition, but the limitation petition could not be filed within that period; and, even though, while passing the order dated 29-4-83, this Court had observed that the time was being granted at the risk of the appellant. The appellant prayed for and obtained a further extension of the period and only thereafter the present application was filed. It is, therefore, manifest, that the appellant has not been diligent in prosecuting this appeal and the discretion to condone the delay ought not to be exercised in its favour. This is particularly so in view of the provisions of O.41, R.3A of the Code of Civil Procedure which requires a memorandum of appeal which is time barred to be accompanied by the petition for condonation of the delay. The provision may not be mandatory but even a directory provision has to be complied with substantially. The provisions of O.41, R.3A, C.P.C. would be rendered completely nugatory if petition filed after inordinate delay are allowed. I would accordingly, reject the application, under S.5 of the Limitation Act.

(3.) In the result, the memorandum of appeal is rejected as barred by limitation. Appeal dismissed.