Supreme Court of India
THE STATE OF MANIPUR & ORS. versus KOTING LAMKANG on 22 October 2019
2019 INSC 1182[2019] 13 S.C.R. 565
[2019] 13 S.C.R. 565
THE STATE OF MANIPUR & ORS.
v.
KOTING LAMKANG
(Civil Appeal No. 8298 of 2019)
OCTOBER 22, 2019
[R. BANUMATHI, A. S. BOPANNA AND
HRISHIKESH ROY, JJ.]
Delay/Laches: Appeal by State – Delay of 312 days inpreferring the Regular First Appeal (RFA) –Condonation of –Dismissal of application for condonation of delay – Condonationwas sought by the appellant on the ground that they made a bonafidemistake in preferring the appeal against an order before the wrongforum i.e. District Judge – The District Judge held that it had nopecuniary jurisdiction to entertain the appeal and disposed ofappeal permitting the appellant to appeal before High Court –Appeal to High Court – Time spent by appellant in wrong forumwas 44 days – High Court rejected the condonation applicationobserving that there was no explanation for time taken by appellantfor the remaining period – On that basis, RFA was not entertainedon merits – Appeal before Supreme Court – Plea of respondent wasthat after decree dated 18.7.2016, the execution proceedingscommenced and finally concluded on 11.7.2018 and therefore,nothing survived in RFA to be considered on merits inasmuch as,possession of the concerned land was handed over to the respondent– Held: Appellants preferred the appeal at first instance on15.6.2017 before the District Judge – But since this was before thewrong forum and it was filed after a delay of about eleven monthsand there was no explanation for the time taken by the State between18.7.2016 and 15.6.2017, the delay in the RFA before the HighCourt was not condoned – In fact, the Court found that the Statedid not show as to what prevented them from preferring the appealbefore the District Judge (wrong forum), until 15.6.2017 and thatthe latitude in applying the standards of “sufficient cause” test wasnot attracted – But while concluding so, it was necessary for thecourt to also be conscious of the bureaucratic delay and the slowpace in reaching a Government decision and the routine way of
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565
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Adeciding whether the State should prefer an appeal against ajudgment adverse to it – Regard should be had to the impersonalnature of the Government’s functioning where individual officersmay fail to act responsibly – This in turn, would result in injustice tothe institutional interest of the State – In the instant case, under thedecree passed against the appellants-State and authorities, they wereBdirected to vacate and handover land, projected to be an area ofstrategic importance by the appellants – Therefore, it was necessaryfor making available to the appellants a legal forum, which couldconsider their challenge to the decree – If consideration of the RFA
is not permitted on strategically sensitive case involving security, inCthe ultimate analysis, the public interest is likely to suffer – Therefore,to avoid injustice to the State’s interest and considering the specialcircumstances in the matter at issue, in exercise of jurisdiction underArt.136 of the Constitution, the delay in filing the first appeal iscondoned subject to cost of Rs.50,000/- payable by the appellants in the High Court – RFA preferred by the appellants is restored forDconsideration on its own merits – Issue of possession and finalisationof the execution is made subject to the final decision of the HighCourt in the RFA – Executing Court directed to refund Rs. 15 lakhsto the appellant-State deposited in the Executing Court.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8298Eof 2019.From the Judgment and Order dated 27.11.2017 of the High Courtof Manipur at Imphal in M.C. (RFA) No. 19 of 2017.
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Leishangthem Roshmani Kh and Ms. Anupama Ngangom, Advs.for the Appellants.FSridhar Potaraju, Shri Gaichangpou Gangmei, Ms. Shweta Parihar,Ms. Shiwani Parihar, Ms. G. Usharsi and Vishnu Thulasi Menor, Advs.for the Respondent.
The following Order of the Court was passed
O R D E R
GHRISHIKESH ROY, J.
1. Leave granted.
2. This appeal is preferred against the Judgment and order dated27.11.2017 passed by the High Court of Manipur at Imphal inHM.C.(RFA)No. 19 of 2017 in reference to RFA No. 5/2017 whereby and where under, the learned Judge after considering the applicationfiled by the appellants for condonation of delay of 312 days in preferringthe Regular First Appeal, has declined to condone the delay and theapplication was consequently dismissed. The condonation was soughtby the appellants with the projection that they made a bonafide mistakein preferring the appeal against the impugned order and decree dated18.07.2016 before the wrong forum i.e. learned District Judge, ImphalWest. The Court however did not entertain the appeal on the groundthat the Court has no pecuniary jurisdiction to entertain the appeal.Accordingly, Judl.Misc. Case No. 32 of 2017 was disposed of by thelearned District Judge on 28.07.2017 permitting the appellant to file appealbefore the High Court of Manipur.
3. From the application for condonation of delay in RFA No. 19/2017, it can be seen that the time spent by the appellant in the wrongforum was 44 days (15.06.2017 to 28.07.2017). The learned Judge ofthe High Court found that the delay was not explained for the otherdays. The condonation application was accordingly rejected with theobservation that there is no explanation for the time taken by the appellantsbetween 18.07.2016 and 15.06.2017. On that basis, the Regular FirstAppeal was not entertained on merits.
4. We have heard learned counsel appearing on behalf of theappellant-State of Manipur as well as the learned counsel appearing onbehalf of the respondent.
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5. The Learned counsel appearing on behalf of the respondentwould point out that after the decree, the execution proceedingscommenced and was finally concluded on 11.07.2018 and, therefore,nothing survives in the RFA to be considered on merits inasmuch as,possession of the concerned land was handed over to the respondent-plaintiff.
6. The above contention of the respondent is strongly refuted bythe learned counsel appearing on behalf of the appellants. He submitsthat the State of Manipur and other defendants continue to be in possessionof the disputed land, notwithstanding the decree and the executionproceedings.
7. In so far as the refusal by the High Court to condone the delayof 312 days in the RFA preferred by the State of Manipur and others, itis apparent that the appellants did prefer the appeal at first instance on AB
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A15.06.2017 before the District Judge. But since this was before the wrongforum and it was filed after a delay of about eleven months and there isno explanation for the time taken by the State between 18.07.2016 and15.06.2017, the delay in the RFA before the High Court was not condoned.In fact the Court found that the State has not shown as to what preventedthem from preferring the appeal before the District Judge (wrong forum),Buntil 15.06.2017. The Court also said that the latitude in applying thestandards of “sufficient cause” test is not attracted, in the instant case.
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8. But while concluding as above, it was necessary for the courtto also be conscious of the bureaucratic delay and the slow pace inreaching a Government decision and the routine way of deciding whetherCthe State should prefer an appeal against a judgment adverse to it. Evenwhile observing that the law of limitation would harshly affect the party,the court felt that the delay in the appeal filed by the State, should not becondoned.
9. Regard should be had in similar such circumstances to theDimpersonal nature of the Government’s functioning where individualofficers may fail to act responsibly. This in turn, would result in injusticeto the institutional interest of the State. If the appeal filed by State arelost for individual default, those who are at fault, will not usually beindividually affected.E
10. In the the instant case under the decree passed against thedefendants i.e. the State of Manipur, the Director General of Police andthe Commandant of 8[th] battalion of the Manipur rifles, the appellants areto vacate and handover the Schedule “C” and “D” land, which is projectedto be an area of strategic importance by the appellants. Therefore weFfeel that it is necessary for making available to the appellants a legalforum, which could consider their challenge to the decree obtained bythe plaintiff from the Civil Judge (senior division) Chandel, in the O.S.no. 4 of 2015.
11. In the present matter, the delay to the extent of 44 days, inGmoving before the wrong court was found to be satisfactorily explainedin the impugned judgment. As regards the failure of the State to adequatelyexplain the remaining period of delay, our opinion is that the interest ofjustice would be better served, if the appellants’ challenge to the decreeof the Trial Court is allowed to be examined on merit, by the firstAppellate Court. If the merit of the Defendant’s RFA is not permitted toHbe examined by the Appellate Court, the State will have no opportunity to address their grievances before a higher Court. We may also observethat if consideration of the RFA is not permitted on strategically sensitivecase involving security, in the ultimate analysis, the public interest islikely to suffer. The First Appeal should therefore be considered on meritinstead of the State being non-suited, on the ground of delay.
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12. Therefore to avoid injustice to the State’s interest andconsidering the special circumstances in the matter at issue, we deem itappropriate to exercise our jurisdiction under Article 136 of the Constitutionof India and interfere with the impugned order of the High Court ofManipur. The delay in filing the first appeal is condoned. This shall howeverbe subject to payment of costs of Rs. 50,000/- (Rupees fifty thousand)by the appellants in the High Court. In the result, the Regular First Appealpreferred by the appellants is directed to be restored and considered onits own merits. Considering the rival contentions on possession beingtaken over/not taken over and the execution proceedings stated to haveconcluded on 11.07.2018, the issue of possession and finalisation of theexecution is made subject to the final decision of the High Court, in theRFA No. 5 of 2017.
13. In view of the above decision, the Executing Court is directedto refund the sum of Rs. 15,00,000/- (Rupees fifteen lakhs) to theappellant-State of Manipur along with accrued interest deposited in theExecuting Court, in pursuant to the order dated 29.01.2018 passed bythis Court.
14. With the above order, the appeal is allowed.
Devika Gujral
Appeal allowed.
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