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Synopsis

The Supreme Court has on April 3, 2924 said that if a litigant chooses to approach the court long after the lapse of the time prescribed under the relevant provisions of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned.

A bench of Justices Aniruddha Bose and J B Pardiwala dismissed an appeal filed by the Union government against the Bombay High Court's 2019 order declining to condone delay of 12 years and 158 days in filing the application for restoration of a writ petition dismissed in 2006 for non prosecution.

"We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. We should not keep the ‘Sword of Damocles’ hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants," the bench said.

The matter related to a bungalow in Pune cantonment which was leased out to the Union government in 1951. The respondent filed a suit in 1981 which was decreed in his favour in 1987 entitling him possession. The Union government filed its appeal which was dismissed.

Before the high court, the plea was rejected in 2006 due to non prosecution.

Attorney General R Venkataramani, appearing for the appellants vehemently submitted that he had a very good case on merits and considering the merits alone, the delay of 12 years and 158 days deserved to be condoned. He laid much emphasis on the fact that the suit property was situated within the Pune cantonment which was under the ownership of the Union government. 

The respondent in his capacity as a private party should not be permitted to deprive the Government of its land after having admitted that the super structure alone belongs to him and that the land belongs to the Government, he said.

The bench, however, said that the high court committed no error much less any error of law in passing the order. Even otherwise, the high court was exercising its supervisory jurisdiction under Article 227 of the Constitution and it has been said in a plethora of decisions that delay should not be excused as a matter of generosity, the court said. 

"Rendering substantial justice is not to cause prejudice to the opposite party. The appellants have failed to prove that they were reasonably diligent in prosecuting the matter and this vital test for condoning the delay is not satisfied in this case," the bench said.

The court said that the length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. 

"From the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation," the bench said. 

"Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for along, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations," the bench added.

The bench said that while considering the plea for condonation of delay, the court must not start with the merits of the main matter. 

The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay, the bench explained.

Going by the facts of the matter, the bench said, "We are in 2024. Almost 43 years have elapsed. However, till date the respondent has not been able to reap the fruits of his decree. It would be a mockery of justice if we condone the delay of 12 years and 158 days and once again ask the respondent to undergo the rigmarole of the legal proceedings."

The bench also pointed out it hardly matters whether a litigant is a private party or a state or Union government when it comes to condoning the gross delay of more than 12 years. 

"If the litigant chooses to approach the court long after the lapse of the time prescribed under the relevant provisions of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned. This litigation between the parties started sometime in 1981," the bench said.

Notably, the bench pointed out the high court made a reasonable suggestion to the appellants that if the possession of the suit property was handed over to the respondent, then probably the court might consider restoring the petition which came to be dismissed for default on October 10, 2006. 

The high court noted that the appellants declined to hand over the possession. 

"We reiterated the very same suggestion before the Attorney General that if the appellants are ready and willing to hand over the suit property to the respondent, then, despite there being a long and inordinate delay, we may consider condoning the same and remanding the matter back to the High Court so that the High Court may be in a position to hear the matter on its own merits. However, the Attorney General, after taking instructions from his clients, regretted his inability to persuade the appellants to hand over the possession of the suit property to the respondent," the bench said.