- (1.) B. S. Chanhra, J. This writ petition has been filed by the State of U. P. and another for quashing the order of the learned District Judge, Moradabad dated 13-8-1986 and the order of the Provincial Small Causes Court dated 24- 3-1984 (Annexures-6 and 5 to the writ petition ).
(2.) RESPONDENT No. 3, Smt. Noor Jahan, the landlady filed a case under Section 20 of the Provincial Small Cause Courts Act, 1887 for eviction of the petitioner from the premises in dispute and for the recovery of arrears of rent. According to the averments of the parties, the landlady had given the notice as required under Section 80, C. P. O. to the learned District Govern-men Counsel for and on behalf of the State-Petitioner regarding of the said suit, but no one appeared for the State to defend the said suit and it was decreed ex pane by the Presiding Officer of the Small Causes Courts, vide its judgment and order dated 19-11-1979. According to the petitioner-State the petitioner came to know about the passing of the said ex parte order dated 19-11-1979 on 16-3-1980 and after inspecting the file and ascertaining the facts an application under Order IX, Rule 13 read with Section 151, C. P. C, for setting aside the ex parte decree was filed on 27-3-1980. The trial court, vide its order dated 24-3-1984 (Annexure-5 to the writ petition) rejected the application of the petitioner on the ground that there was unreasonable delay in moving the said application and day-to-day delay has not properly been ex plained an mandatorily required under Section 5 of the Limitation Act, 1963. Being aggrieved and dissatisfied, the petitioner filed Appeal No. 28 of 1984 before the learned District Judge, Moradabad and the same has been rejected by the said Court, vide its judgment and order dated 13-8-1986 (Annexure-6 to the writ petition ). Being aggrieved and dissatisfied, the State has filed the instant writ petition and this Court, vide its order dated 29-9-1986 granted an interim stay in favour of the petitioner-State saying that the decree of the eviction passed on 19-11-1979 shall not be enforced against the petitioner-State. The contention of the learned counsel for the State is that the courts below have erred in not properly appreciating the contentions of the State. In support of his contentions, learned counsel for the State relies upon the judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353 wherein the Supreme Court has observed as under:- '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 same 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 non-deliberate delay. (5) There is 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 his power to legalize 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 con donation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, includ ing 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 praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited 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 approve. In any event, the which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts, therefore, have to the informed with the spirit and philosophy of the provision in the course of the interpretation of the expression" sufficient cause". SC also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. " Similarly, learned counsel for the State further relied upon another judgment of the Supreme Court in the case of G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897. The Supreme Court has observed as under: "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 the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of the its officers or agents and where the officers were clearly at cross-purposes with it. Therefore, in assessing what, in a particular case, constitutes, sufficient cause' or purposes of Section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Govern mental decisions are proverbially show encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints'. Due recognition of these limitations, on governmental functioning of course, within a reasonable limit is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respect is in such matters. Implicit in the very nature governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases whore the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law officers. Lindlev. M. R. , in the Re : National Bank of Wales Ltd. , (1899) 2 Ch 629 at p. 673, observed, though in a different context ; Business cannot be carried on upon principles of distrust, men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them. ' In the opinion of the High Court, it took quite sometime for the Government to realise that the law officers failed that trust. While a private person can take instant decision a 'bureaucratic of democratic organ' it is said by learned Judge 'hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a con clusion, unmindful of time and impersonally. ' Now at the end, should we interfere with the discretion exercised by the High Court. Shri Datar criticised that the delay on the part of Government even after 20-1-1971 for over a yea? cannot be said to be either bonafide or compelled by reasons beyond its control. This criticism is not without substance, Government could and ought to have moved with greater deligence and despatch consis tent with the urgency of the situation. The conduct of Govern ment was perilously close to such inaction as might, perhaps, have justified rejection of its prayer for condonation. But as is implicit in the reasoning of the High Court, the unarticulated thought, perhaps, was that in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits. The High Court noticed that the Government Pleader who was in office till 15-12-1970 had applied for certified copies on 20-7-1970, but the application was allowed to be dismissed for default. In one case, however, he appears to have taken away the certified copy even after he ceased to be a Government Pleader. In a similar context where delay had been condoned by High Court, this Court declined to interfere and observed: "having regard to the entirety of the circumstances, the High Court through that the State should not be penalised for the lapses of some of its officers and that in the particular circumstances there were sufficient grounds justifying the condonation of delay in filing the appeals. It was a matter for the discretion of the High Court. We are unable to say that the discretion was improperly exercised. . . . . . "
(3.) IN the case of M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484, the Supreme Court has laid down that the procedural law is intended to facilitate and not to obstruct the course of substantive justice. IN the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon AIR 1989 SC 1267, it has been observed that rules of procedure are intended to be a handmaid to the administration of Justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. . In view of the above submissions, learned Standing Counsel submits that the impugned order dated 24-3-1984 and 13-8-1986 (Annexures 5 and 6 to the writ petition) be quashed. On the other hand Sri Swami Dayal, learned counsel for respondent No. 3 vehemently argued that the above submissions are untenable in view of the fact that the Miscellaneous Appeal No. 28 of 1984 filed by the petitioner State was not maintainable in view of Para (D) of Order XLIII, Rule 1, C. P. C. and the revision should have been filed by the State petitioner before the learned District Judge. Para-D of the said Rules reads as under: "an appeal shall lie from the orders under the provision of Sec tion 104 against an order under Rule 13 of Order IX, C. P. C. rejecting an application (in a case opened to appeal) for an order to set aside decree passed ex parts:" Sri Swami Dayal further relied upon Section 17 of the Provincial Small Causes Courts Act, 1887 where proviso to sub-section (1) reads as under;- "provided that an application for an order to sat aside a decree passed ex parte or for a review of judgment shall, at the time of present ing his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed," The contention of Sri Swami Dayal is that as the State petitioner has not complied with the terms and conditions laid down in the proviso of sub section (1) of Section 17 of the Act of 1887, the application under Order IX, Rule 13, G. P. G. read with Section 151, CPC could not have been entertained even by the Small Causes Court. In the pleadings there is no averment or submission that the State-petitioner had ever requested the Court of the learn ed District Judge to convert the said appeal into a revision nor such a prayer has been made in the instant writ petition. It is too late now for the State to seek that relief from this Court particularly in exercise of the extraordinary discretionary power conferred upon it under the provisions of Article 226 of the Constitution. Once the appeal of the State had been rejected by the learned District Judge solely on the ground of non-maintainability, the peti tioner ought to have taken the specific averment in the pleadings and ought to have made a specific prayer in the instant writ petition to convert the said appeal into revision and remand the case to the learned District Judge for disposal afresh. After enjoying the interim order passed by this Court for nearly a decade it will be injustice to respondent No. 3 to give any indulgence in favour of the State and that too on oral submissions.;