SHALENDRA vs CHAIRMAN AND MANAGING DIRECTOR & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 16th February, 2024
+ REVIEW PET. 60/2024 in W.P.(C) 8264/2023
SHALENDRA ….. Petitioner
Through: Mr.Abhijeet Anand, Advocate
versus
CHAIRMAN AND MANAGING DIRECTOR & ORS.
… Respondents
Through: Mr.Manoj, SPC for FCI
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
REVIEW PET. 60/2024
1. The petitioner vide the present review petition under Section 114 read with Order XLVII Rule 1, Section 151 of the Code of Civil Procedure, 1908 seeks the following reliefs:
1. Allow the instant Application thereby the said impugned order dated 23.11.2023 passed by this Honble Court may kindly be reviewed and rectified by setting aside the same and the said Application by the Respondents under Section 5 of the Limitation Act seeking condonation of delay of 52 days in filing the Counter Affidavit be dismissed in the Interest Of Justice; and
2. Pass such other or further orders as this Honble Court may deem fit and proper considering the facts and circumstances of the case and in the interest of justice.
2. Learned counsel appearing on behalf of the petitioner submitted that the instant review petition has been filed against the order dated 23rd November, 2023 passed by this Court in the captioned writ petition.
3. It is submitted that vide the above said order, this Court had allowed the respondents application bearing CM APPL No. 52797/2023 under Section 5 of the Limitation Act, 1963 (the Act hereinafter), thereby, condoning the delay of 52 days in filing the counter affidavit.
4. It is submitted that the said order has been passed against the settled principles of law and the errors thereto are apparent on the face of its record.
5. It is submitted that vide order dated 11th July, 2023, this Court had directed the respondents to file counter affidavit within a period of 4 weeks and the said period of 4 weeks expired on 8th August, 2023, however, the respondents file the counter affidavit on 30th September, 2023, i.e., after a delay of 52 days.
6. It is submitted that the reasoning given by the respondents for the said delay is that the petitioner had also applied under the next advertisement No. 1/2022 things were in a flux and the first Counter Affidavit that was drafted within time, was discarded. After being briefed with the subsequent facts, a fresh and modified Counter Affidavit was drafted. The same is being filed after being vetted and signed by the authorized person.
7. It is submitted that no proof whatsoever has been filed by the respondents in support of reasoning given for the delay of 52 days and the above stated reasoning is completely misleading since the Advertisement No. 1/2022 is not the subject matter of the instant writ petition and therefore, not relevant.
8. It is submitted that no explanation much less a sufficient or a satisfactory explanation has been provided by the respondents and the respondents application for condonation of delay has been filed with mala fide intentions, thereby, abusing the process of law.
9. It is submitted that the Honble Supreme Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd., (1962) 2 SCR 762, had enunciated upon the concept of sufficient cause which is to be seen while adjudicating an application under Section 5 of the Act. It is further submitted that sufficient cause is absent in the respondents application and therefore, the impugned order is liable to be reviewed.
10. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the relief be granted as prayed for.
11. Per Contra, the learned counsel appearing on behalf of the respondents vehemently opposed the instant review petition submitting to the effect that the same is liable to be dismissed being devoid of any merits.
12. It is submitted that the reasons stated by the respondents in aapplication bearing CM APPL No. 52797/2023, filed under Section 5 of the Act, is bona fide and only after finding the said reasons to be sufficient cause, this Court deemed it fit to condone the delay in filing the counter affidavit.
13. It is submitted that the impugned order has been passed after taking into consideration the entire facts and circumstances into account and there is no case made out for the review of the same as per the law settled qua the principles of review.
14. It is therefore submitted that the petitioner has been unable to put forth any contentions in order to bring out the grounds for review of the impugned order and the present review petition, being devoid of any merits, is liable to be dismissed.
15. Heard the parties and perused the record.
16. The petitioner vide the present review petition is seeking the review of the impugned order dated 23rd November, 2023, wherein, this Court had allowed the application bearing CM APPL No. 52797/2023. The said application was filed on behalf of the respondents seeking condonation of delay of 52 days in filing the counter affidavit. Upon finding sufficient reasons in the application, the same was allowed and the delay in filing the counter affidavit was condoned, thereby, taking the counter affidavit dated 30th September, 2023 on record and listed the captioned writ petition on 10th May, 2024 for final hearing. The relevant portion of the impugned order is reproduced for reference:
..CM APPL. No.52797/2023
The present application under Section 5 of the Limitation Act has e been filed on behalf of the respondents seeking condonation of delay of 52 days in filing the counter affidavit.
For the reasons stated in the application, the application is allowed and the delay in filing the counter affidavit is condoned. The counter affidavit is directed to be taken on record.
The application stands disposed of.
W.P.(C) 8264/2023 and CM APPL. Nos.31798/2023 and 31800/2023
Learned counsel appearing on behalf of the parties submitted that the pleadings are complete and the matter may be listed for final hearing.
List for final hearing on 10th May, 2024
17. The bone of contention of the instant review petition revolves around the submission that the reasoning provided by the respondents in its application seeking condonation of delay is not sufficient and in view of the same the impugned order is liable to be reviewed.
18. Upon perusal of the application bearing CM APPL No. 52797/2023, it is observed that the respondents had reasoned the delay of 52 days by stating that the petitioner had also applied in another advertisement no. 1/2022 and that the things were in a flux, therefore, the draft of first counter affidavit which was ready within time had to be discarded. Accordingly, after being briefed with the subsequent facts, a fresh and modified counter affidavit was drafted. The same was then file after being duly vetted and signed by the authorized person. The respondents had stated that the above said events led to the delay in filing the counter affidavit and that the said delay was bona fide. The relevant portion of the above said application of the respondents is as under:
…3. It is submitted that the delay in filing the accompanying Counter Affidavit has occasioned on account of reasons beyond the control of the Respondents.
4. As the Petitioner had also applied under the next Advertisement 1/2022, things were in a flux and the first Counter Affidavit with the subsequent facts, a fresh and modified Counter Affidavit was drafted. The same is being filed after being vetted and signed by the authorized person. that there is no laches, for the delay. Thus, the delay may be condoned in the interest of justice.
5. It is submitted that it would be apparent from the above facts that there is no laches, negligence or laxity in filing the accompanying Counter Affidavit. It is further submitted that the delay that has ensued is bonafide and, there is sufficient cause for the delay. Thus, the delay may be condoned in the interest of justice.
6. It is furthermore submitted that law is well settled by the Apex Court that in condoning the delay, a liberal attitude must be adopted and that the cause of substantial justice must be adopted and that the cause of substantial justice must be preferred to a pedantic and technical approach
19. Refuting the above, the petitioner has stated that the respondents submissions with respect to the advertisement no. 1/2022 cannot be accepted since the same is not the subject matter of this Court rather the subject matter of the captioned writ petition is advertisement no. 1/2019. Therefore, the same cannot be treated as a sufficient cause under Section 5 of the Act, and in light of the same the impugned order is liable to be set aside, thereby, dismissing the respondents application seeking condonation of delay in filing the counter affidavit.
20. In this regard, it is imperative to understand the interpretation of the term sufficient cause under Section 5 of the Act. As already stated in a catena of judgment by the Honble Supreme Court and also of this Court, the power to condone delay under Section 5 of the Act is discretionary and the same is conferred in order to enable the Courts to do substantial justice to the parties by disposing of the matters on merits. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Honble Supreme Court while interpreting the expression sufficient cause observed as under:
10. It was stressed that there should not be a pedantic approach but the doctrine that is to be kept in mind is that the matter has to be dealt with in a rational commonsense pragmatic manner and cause of substantial justice deserves to be preferred over the technical considerations. It was also ruled that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and that the courts are not supposed to legalise injustice on technical grounds as it is the duty of the court to remove injustice.
***
12. In G. Ramegowda v. Land Acquisition Officer [(1988) 2 SCC 142], Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus: (SCC pp. 147-48, para 14)
14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361 : (1962) 2 SCR 762] , Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] , Concord of India Insurance Co. Ltd. v. Nirmala Devi [(1979) 4 SCC 365 : 1979 SCC (Cri) 996 : (1979) 3 SCR 694] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : (1970) 2 SCR 90] and Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172] , etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause? in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
21. This Court is of the view that whilst adjudicating an application seeking condonation of delay, the discretion ought to be exercised by the Courts must be exercised to ensure that the parties do not resort to dilatory tactics and seek remedy without delay. Furthermore, a liberal approach has to be taken to condone the delay of a short period. The same is done in order to ensure that the justice is imparted in true sense and that the rights of any party is not infringed upon or hampered by the acts of the other.
22. Considering the law stated in the preceding paragraphs, this Court is of the view that the reasons stated by the respondents in application bearing CM APPL No. 52797/2023 were found to be sufficient in light of the settled legal principles qua the condonation of delay under Section 5 of the Act. Furthermore, in the eyes of law, the said reasons fall under the ambit of sufficient cause and hence, allowing the said application was necessary in the interest of justice.
23. This Court is also of the considered view that whatever may be the subject matter of the writ petition, be it advertisement no. 1/2022 as argued by the respondents or advertisement no. 1/2019 as argued by the petitioner; the same can be addressed by the parties at the stage of final arguments and bearing in mind the same, it is not necessary for this Court to get into the merits of the petition at this stage.
24. Furthermore, the petitioner by way of the present review petition is seeking review of the impugned order dated 23rd November, 2023. Therefore, at this stage it is prudent to shed light on the powers of this Court.
25. A review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order or judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise as it does not permit rehearing of the matter on merits. A Court cannot act as an appellate Court for its own judgments, nor can it allow the petitions for review based only on the claim that one of the parties believes the judgment has wronged him.
26. With regard to the limited question, i.e., whether the respondents cause was sufficient or not, this Court condoned the delay of 52 days in filing the counter affidavit since the same is necessary for imparting justice in right sense, and evidently no harm will be done to the rights of the petitioner by taking the counter affidavit of the respondents on record. Taking into account the above discussions, no error or mistake on the face of the record is being found and there is no force in the arguments put forth by the petitioner.
27. As far as the facts of the instant review petition is concerned, the arguments and contentions advanced by the petitioner do not make out a case for review and since no error apparent on the face of the impugned order is found, this Court is not incline to entertain this review petition.
28. In view of the foregoing paragraphs, it is held that the instant review petition is meritless as the same is merely an attempt to abuse the process of law and misuse the remedies available to the petitioner. The present review petition is utterly unnecessary and in light of the same, it is liable to be dismissed.
29. Accordingly, the instant petition stands dismissed. Pending applications, if any, also stands dismissed.
30. The Order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
FEBRUARY 16, 2024
SV/RYP/AV
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