HON'BLE SRI JUSTICE SUBBA REDDY SATTI

I.A.No.1 of 2022

IN/AND

CIVIL MISCELLANEOUS APPEAL No.115 of 2022

JUDGMENT:

This civil miscellaneous appeal is filed against the order dated 30.04.2019 in WC Case No.1 of 2017 on the file of the Commissioner for Workmen's Compensation and Joint Commissioner of Labour, Visakhapatnam.

2. I.A.No.1 of 2022 is filed to condone the delay of 1013 days in filing the CMA.

3. Wife of deceased, filed WC Case No.1 of 2017 against the respondent/opposite party claiming compensation of Rs.6,65,160/-. According to the applicant, deceased who is employee of respondent met with an accident while on duty on 02.09.2010 and later died on 08.04.2011. Respondent contested the case. After considering the rival contentions, lower tribunal by order dated 30.04.2019 granted compensation of Rs.6,52,280/-.

4. Against the said order, the above civil miscellaneous appeal is filed under Section 30 of Workmen's Compensation Act with a delay of 1013 days. In the affidavit filed in support of the petition to condone delay, it was pleaded at Paragraphs-2 to 4 as follows:

"2. It is submitted that against the order dated 30.04.2019 passed in W.C.No.1of 2017 on the file of the Hon'ble Commissioner for Workmen's Compensation and Joint Commissioner of Labour, Visakhapatnam as CMA was filed vide CMA SR No.6349 of 2020 on 20.02.2020. The Online High Court Case Status is showing that the case is returned. It is respectfully submitted that due to Covid pandemic we were unable to take the return file. Thereafter we were unable to trace the file. As such this CMA is filed. Due to this there is a delay in filing the CMA again this delay is not wanton or intentional.

3. I respectfully submit that during January & February 2020 lot of employees took VRS within the department, due to which delay occurred in filing the petition. The delay caused is neither willful nor intentional due to the above mentioned reasons.

4. I submit that I am filing the above C.M.A against the order dated 30.04.2019 passed in W.C.No.1of 2017 on the file of the Hon'ble Commissioner for Workmen's Compensation and Joint Commissioner of Labour, Visakhapatnam for the reasons stated above."

5. Since the appeal is filed with an inordinate delay, this

Court ordered notices to respondent.

6. Respondent filed counter and opposed the application.

7. Heard Sri Bhaskar Poluri, learned counsel for appellant and Sri A.Sudhakar Rao, learned counsel for respondent.

8. Deponent to the affidavit is the Assistant General Manager (PR & Legal), Office of General Manager, BSNL, Visakhapatnam. Name of the deponent and other particulars were not mentioned in the affidavit. However, the affidavit was signed by the deponent and the same was attested by Dy.General Manager (CFA) O/o GMTD, B.S.N.L., Visakhapatnam.

9. Order XIX of Code of Civil Procedure deals with affidavit. Like that Chapter-IV of A.P. Civil Rules of Practice and Circular Orders, 1980 also deals with affidavits. Rule 35 denotes 'Form'; Rule 36 denotes 'Description of deponent' and Rule 37 denotes 'title of affidavits'. Regarding attestation etc. was also specified in the other Rules.

10. The affidavit filed along with the I.A.No.1 of 2022 is reproduced hereunder:

"I, now temporarily come down to AMARAVATHI, do hereby solemnly and sincerely affirm and state as follows:"

11. An affidavit is a written statement voluntarily made by deponent under oath or affirmation which is administered by a person who is authorized to do so by law.

12. Sworn affidavit is a written statement made under oath. The person who is making the statement sworn that the document contains the truth and is aware that he will be prosecuted if it is found that the contents of the affidavit (or parts thereof) are untrue.

13. Affidavits should be drawn in the first person, and the matter of the affidavit should be divided into paragraphs which are numbered consecutively. Each of the paragraphs in an affidavit should ideally be confined to a portion of the subject. Affidavits should mention the full name, fathers name, religious persuasion, age, profession, occupation and residence of the person on whose behalf an affidavit is filed. In case of changes/alterations to an affidavit, changes should be authenticated by the initials of the officer before whom the affidavit was taken. The deponent should verify the contents of the affidavit.

14. As extracted supra, the affidavit filed in support of the petition doesn't contain the name of the deponent and other particulars. Even it doesn't contain date. Assistant General Manager signed the affidavit and attested by Dy.General Manager. A perusal of affidavit reflects callousness attitude on the part of the deponent and attester. On that ground alone, I.A.No.1 of 2022 is liable to be dismissed. However, this Court inclines to consider the reasons assigned in support of the petition filed to condone the delay in filing the appeal.

15. While considering the application for condonation of delay, the Court has to see whether the delay is inordinate or delay is few days and that reasons assigned are valid and cogent. Party seeking condonation of delay needs to explain the delay properly, the grounds which are reasonable and plausible.

16. In Balwant Singh (dead) v. Jagdish Singh and Ors.¹ after referring to earlier case law, the Hon'ble Apex Court held at paragraphs 24 and 25 as under;

¹ (2010) 8 SCC 685

"We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

17. In Maniben Devraj Shah v. Municipal Corporation of

Brihan Mumbai2, the two-Judge Bench of the Hon'ble Apex

Court held as under:

"What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statues, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the costs.

² (2012) 5 SCC 157

What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."

Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."

18. In Esha Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy3, the Hon'ble Apex Court

broadly culled out the following principles:

i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

³ (2013) 12 SCC 649

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters.

19. In Majji Sannemma alias Sanyasirao Vs. Reddy

Sridevi and others4, the Hon'ble Apex Court observed:-

"17. In the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd. [(1962 2 SCR 762] (supra), it is observed and held as under:—

In construing s.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as

⁴ 2021 SCC OnLine SC 1260

beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."

18. In the case of P.K. Ramachandran Vs. State of Kerala [(1997) 7 SCC 556] (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.

19. In the case of Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project [(2008) 17 SCC 448] (supra), it is observed as under:—

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and

preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

20. In the case of Basawaraj Vs. Special Land Acquisition Officer [(2013) 14 SCC 81] (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature."

21. A conspectus of above the judgments referred to supra, the Hon'ble Apex Court observed that length of delay is no matter, acceptability of the explanation is the only criterion. It was further held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of parties and they are meant to see that

parties do not resort to dilatory tactics, but seek their remedy promptly. Hon'ble Apex Court also cautioned that if the delay is occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation. The explanation should not be fanciful and concocted. The Courts while dealing with an application to condone delay should keep in mind the right accrued to other side and should deal with such application with utmost care.

21. The reasons assigned by the deponent to condone the delay of 1013 days are that initially CMA was filed on 20.02.2020 and the same was returned, however the file was not taken due to Covid. The other reason assigned is that during January and February, 2020, lot of employees took VRS within the department and hence, the delay was occurred. In V.Subba Rao and others Vs. Secretary to Government Panchayat Raj and Rural Development, Government of A.P. and others5, it was observed that:

"Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-

⁵ (1996) 7 SCC 626

span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time".

22. The affidavit filed in support of the petition to condone delay does not indicate sufficient reason, much less proper reason. Except making an averment in the affidavit that initially CMA was filed on 20.02.2020 and the same was returned, however the file was not taken due to Covid and that during January and February, 2020, lot of employees took VRS within the department and hence, the delay was occurred in the considered opinion of this Court is not sufficient cause to condone inordinate delay. Moreover, when the CMA was returned, the appellant is expected the resubmit the same by complying with the objections. If the appellant is vigilant in prosecuting the appeal, Court will definitely come to rescue of the appellant. Vigilantibus non dormentibus jura subveninet, means that Court protects those who are vigilant about their rights. However, according to the

affidavit, the returned record was not taken, shows that the appellant is not vigilant and prosecuting the appeal diligently. The affidavit filed in support of the petition to condone delay does not show any sufficient cause. As per the expressions of Hon'ble Apex Court, while condoning the delay, the Court must see whether the deponent explained sufficient cause. Appellant should be vigilant in prosecuting the remedy. Involving substantial rights of parities alone is not the criteria. Unless, sufficient cause is shown, that in case of inordinate delay, condoning the delay does not arise. Since the appellant failed to show sufficient cause to condone the delay of 1013 days, this Court does not find any ground to condone delay. Accordingly, I.A.No.1 of 2022 is dismissed.

23. Consequently, the civil miscellaneous appeal is dismissed. No order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

_________________________ SUBBA REDDY SATTI, J

26th September, 2022 PVD