Sanjay Misra, J. - (1.) HEARD Sri V.K.Nagaich, learned Standing Counsel appearing on behalf of the defendant appellant, the State of U.P. through District Magistrate, Meerut and Sri P.K.Jain, learned Senior Counsel, who has appeared on behalf of the plaintiff-respondent.
(2.) THIS is an application under Section 5 of the Indian Limitation Act for condoning the delay of one year and 174 days in filing this second appeal. THIS application is supported with an affidavit. Counter and rejoinder affidavits have been exchanged between the parties. According to the averments made in the affidavit filed on behalf of the appellant, it has been stated that the certified copy of the judgement and decree dated 29.10.2005/10.11.2005 passed by the First Appellate Court was obtained by the appellant on 28.11.2005 and on 3.12.2005, the District Government Counsel alongwith his opinion sent the same to the authority. On 27.12.2005, the departmental official sent a letter to the Conservator of Forest for obtaining necessary permission from the State Government for filing the second appeal. The Conservator of Forest, Meerut sent a letter dated 28.12.2005 to the State Government for permission to file Second Appeal and by a letter dated 16.1.2006 the Principal Chief Secretary, State of U.P. was requested to give permission to file the appeal and sanction an amount of Rs. 40,000/- for payment of Court Fee and other necessary expenses. Reminders were sent on 23.1.2006, 1.2.2006, 17.2.2006, 21.2.2006 and 29.3.2006 to the Principal Chief Conservator of Forest U.P. and to the State Government for the said purpose. In paragraph 13 of the affidavit, it has been stated that the State Government granted permission vide letter dated 6.6.2006 for filing the appeal, which was received in the office of the forest department on 20.6.2006. On 29.6.2006 the Conservator of Forest, Meerut wrote to the Principal Chief Secretary, State of U.P. for sanction of Rs. 40,000/- for payment of Court Fee and miscellaneous expenses. On 1.7.2006 the officials of the department were deputed to approach the office of the State Counsel, High Court, Allahabad and such official approached the Chief Standing Counsel, High Court Allahabad on 3.7.2006 and was informed to bring the necessary Court Fee and miscellaneous expenses for filing the appeal. It is stated in the affidavit that on 18.7.2006, 24.8.2006, 18.9.2006, 27.9.2006 and 17.11.2006, the Principal Chief Secretary State of U.P. was repeatedly asked to sanction the amount of Rs. 40,000/- for Court Fee and other expenses for filing the second appeal. A letter dated 10.1.2007 was received from the Deputy Secretary, State of U.P. by the office of the Principal Chief Conservator of Forest, U.P. Lucknow to meet the necessary expenses from the account of the Forest Department and file the appeal. The said letter is alleged to have been received by the Principal Chief Conservator of Forest, who sent a letter dated 16.1.2007 to the Principal Chief Secretary State of U.P. for granting financial sanction of Rs. 40,000/- at the earliest. On 7.2.2007 the Deputy Secretary, State of U.P. required some queries and clarifications from the department and again wrote to the department on 8.2.2007 to meet the expenses from the funds of the Forest Department and file the appeal. It has been stated in paragraph 25 of the affidavit that on 23.2.2007 the Divisional Director, Social Forestry Division, Meerut requested the Finance Controller in the office of the Principal Chief Conservator of Forest, U.P. Lucknow to grant the financial sanction. The Conservator of Forest, Meerut sent a similar request to the Principal Chief Conservator of Forest, U.P. on 2.3.2007. In paragraph 28, it is stated that on 12.3.2007 the Principal Chief Conservator of Forest, U.P. again wrote to the Principal Chief Secretary, State of U.P. for sanction of the amount and inter departmental reminders were sent. On 23.4.2007 the Finance Controller in the office of the Principal Chief Conservator of Forest, U.P. Lucknow granted sanction of Rs. 40,000/- for payment of Court Fee and miscellaneous expenses for filing the second appeal. The said letter was sent to the Treasury Meerut and a Bank Draft in the name of the Chief Standing Counsel High Court, Allahabad of Rs. 30,000/- was prepared on 13.5.2007. In paragraph 34 it has been stated that after receipt of the Bank Draft dated 13.5.2007 the official came to Allahabad on 15.5.2007 for filing this second appeal but was sent back by the State Counsel to get the necessary documents. It has been stated that after arranging the required documents and papers the official approach the State Counsel at Allahabad on 6.7.2007 whereafter the appeal was drafted and filed on 17.7.2007. Sri P.K.Jain, learned Senior counsel for the respondents has opposed the condonation of delay application on the ground that inter departmental correspondence of the appellant is not a sufficient reason to record that the delay is to be condoned. According to him the second appeal could have been filed even without the necessary Court Fee and the deficiency in Court Fee could have been made good by the appellant at subsequent dates for which the reasons for delay in making good the deficiency could be explained by them. According to him non filing of the appeal even after sanction was granted by the State Government on 6.6.2006 is not sufficiently explained in the affidavit since the appeal was filed more than 1 year after the State Government had granted the permission. He has argued that the Hon'ble Supreme Court in the decision in the case of Ex. Capt. Harish Uppal Vs. Union of India and others reported in ALR 1994 (23)574 has clearly held that the parties should pursue their rights and remedies promptly and not sleep over their rights, which is the whole policy behind the Limitation Act and other rules of Limitation. According to him after 6.6.2006, the appellant has slept over his rights to file the second appeal and the explanation that they were waiting for financial sanction is contradictory because the Deputy Secretary of the State Government had clearly written on 10.1.2007 to the department to arrange the fund from its own department and file the appeal. He states that when the funds were to be arranged by the department itself, there was no reason for such an extra ordinary delay in filing the appeal. He has also placed reliance upon the decision of a learned Single Judge of this Court in the case of State of U.P. and another Vs. Ist Addl. District Judge, Moradabad and others reported in ALR 1995 (26) 585 to state that all litigants including the State should be accorded the same treatment while considering an application for condonation of delay and the fact that State was seeking condonation and not a private party was altogether irrelevant. It was held that 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. The learned judge further recorded that there is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. On the aforesaid law cited, learned counsel for the respondent states that the condonation of delay application made by the State appellant cannot be allowed since there is no satisfactory or even reasonable explanation for condoning the delay in filing the second appeal.
(3.) LEARNED Standing Counsel has referred a decision of the Hon'ble Supreme Court in the case of State of Haryana Vs. Chandra Mani and others reported in AIR 1996 Supreme Court 1623 and has referred paragraph 10, which is quoted below:- "10. It is notorious and common knowledge that delay in more than 60 percent of the cases filed in this Court--be it by private party or the State--are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making file-pushing, and passing on the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay--intentional or otherwise--is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from the perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay." From the aforesaid submissions and the averments made in the respective affidavit as also the law laid down by the Hon'ble Supreme Court it appears that the sufficient cause for condonation of delay shown by the State, which is the appellant is to be considered in view of the fact that the Government is an impersonal machinery and decisions are taken at a slow pace and certain amount of latitude is not impermissible while considering the condonation of delay application made by the State. In so far as sufficient cause is concerned the same requires to be ad-judged from the averments made by the applicant.;