1. The petitions are directed against the order dated 21.6.2010 passed by the learned First Appellate Court condoning the delay of 479 days caused by the appellant - State of Gujarat in filing the appeal before the learned First Appellate Court, by allowing the application filed under Section 5 of the Limitation Act, seeking condonation of delay caused in filing Appeal preferred by the appellant-State of Gujarat.
2. Heard Mr. Mehul S. Shah, learned advocate for the petitioner.
3. So far as the facts involved in present cases are concerned, it emerges from the record that aggrieved by certain orders passed by the learned trial Court, the State of Gujarat, being one of the parties to the suit proceedings, as well as the Special Land Acquisition Officer being the other party to the suit proceedings, preferred appeal before the learned First Appellate Court.
4. It also transpires that delay of 479 days was caused in filing the said appeal.
5. Therefore, the appellant-State of Gujarat and the Special Land Acquisition Officer preferred application under Section 5 of the Limitation Act, seeking condonation of delay. The application was opposed by present petitioner. One of the objections raised by the petitioner against the said application was that the details mentioned in the application explaining delay were stated on the basis incorrect or inaccurate facts.
6. The learned First Appellate Court has after considering the objection allowed the application and condoned delay of 479 days caused by the appellant-State of Gujarat in filing the appeal.
7. Aggrieved by the said order of condoning delay, the opponents in the appeals have preferred present petitions.
8. Mr. Shah, learned advocate for the petitioner has submitted that the dates on which the appellant-State of Gujarat received intimation from the office of the Assistant Government Pleader, based on which the decision (as to whether appeal should be preferred or not) was to be taken, were wrongly mentioned in the application and actually communication from the Assistant Government Pleader's office was received much earlier than the date which was mentioned in the application. The petitioner also sought to cross-examine the deponent of the application, however, it is not in dispute that subsequently rejoinder-reply-affidavit was filed wherein the mistake was rectified and correct dates were mentioned.
9. After taking into account the said rejoinder-reply-affidavit and other material on record the learned First Appellate Court has, as aforesaid, allowed the application and condoned delay.
10. Mr.Shah, learned advocate for the petitioner has made grievance against the decision of the learned First Appellate Court and has submitted that when the applicant had approached the Court with incorrect details, the request based on such incorrect facts should not have been entertained. He further submitted that the when the party seeking condonation of delay makes request to the Court to condone delay on incorrect facts then such application should not only be rejected but such conduct of the applicant should be viewed seriously by the Court.
11. Ordinarily, the submission by the petitioner herein would be accepted as justified.
12. However, the absence of any ill-intention and possibility of bonafide inadvertent mistake also cannot be ignored by the learned trial Court while considering such application, when the applicant in impersonal body like the State Government. In present cases it is required to be noted that the applicant-appellant before the learned First Appellate Court is an impersonal body i.e. the State of Gujarat who seems to have made an inadvertent mistake sans any ill-intention or malafide or while drawing the application the officer who gave instruction for preparing the application might not have informed the details, to the learned Assistant Government Pleader.
13. When such application is preferred by impersonal body like State government such inadvertent mistake may occur, however unless any malafide or ill-intention are expressly alleged and duly established, the application may not be rejected by the Court on the ground that originally inaccurate averment was made in the application. In present case, there is no allegation about any malafide or ill-intention on the part of the applicant-appellant.
14. When such allegation is not made then the order of the learned First Appellate Court on accepting the explanation upon being satisfied, cannot be faulted.
15. On perusal of the application made by the appellant-State of Gujarat it emerges that the explanation regarding cause for delay was stated by the applicant-State of Gujarat however, some inadvertent mistake did occur in mentioning the date, which came to be corrected by filing rejoinder-reply-affidavit.
16. When the Court found that there was no ill-intention or malafide and no allegation was made, then the learned First Appellate Court was required to consider as to whether the applicant-appellant had satisfactorily explained the delay or not.
17. The learned First Appellate Court has recorded its satisfaction regarding explanation for delay and this Court does not find any illegality or arbitrariness in the reasons recorded by the learned First Appellate Court.
18. The order impugned in present petition, whereby the delay of 479 days caused by the applicant-appellant State of Gujarat in preferring the appeal is condoned, does not suffer from any infirmity and does not warrant any interference by this Court.
19. However, at this stage it deserves to be noted that the learned trial Court ought to have addressed the issue of compensating the petitioner for the delay caused by the applicant-appellant State of Gujarat in preferring appeal.
20. The said aspect has not been addressed by the learned First Appellate Court while passing impugned order and to that extent the learned First Appellate Court can be said to have missed to take into account the relevant aspect.
21. However, this Court is not inclined to upset the order on the said ground instead it appears that interest of justice would be served if the learned First Appellate Court is directed to pass appropriate order regarding cost for compensating the petitioner (i.e. the opponent in the appeal) while passing final order in the appeal.
22. It is, thus, directed that the learned First Appellate Court shall, while passing final order in the appeal, make appropriate order as regards the cost for compensating the petitioner for the delay caused by the appellant-State of Gujarat in preferring appeal.
23. With the aforesaid clarification the petitions are disposed of.
