1. Condonation of delay in filing the appeal is sought for by the appellant in this application under proviso to Section 16(3) of the Electricity Regulatory Commission Act, 1998 (for short "the Act").
2. The appeal is directed against order of Central Electricity Regulatory Commission, New Delhi (for short CERC). On 19.6.2002 the said order was passed in Petition No. 62 of 2000. Tariff was fixed by the CERC for supplying power from Talcher Thermal Power Station (for short TTPS) to the appellant.
3. GRID Corporation Orissa Ltd. (for short GRIDCO) is the petitioner (appellant). It supplies electricity in Orissa. National Thermal Power Corporation Ltd. is the opp. party (Respondent). It is a power generating Company.
4. Note of Stamp Reporter is perused. It indicates date of impugned order as 19.6.2002. Appeal was actually filed on 26.9.2002. Therefore, period occupied comes to 99 days. Since period of limitation for filing appeal being 60 days, 39 days delay is caused in filing the appeal.
5. Pleadings of the petitioner are like this :
Opposite party made an application on 23.8.2002 seeking review of an order passed by CERC. The petitioner also made such an application before CERC for review of the same order. Both the review petitions are still pending for disposal. On 20.9.2002 petitioner was advised by his advocate in Delhi in Fax message to file an appeal, because respondent, in addition to review petition, brought an appeal before Delhi High Court. Immediately thereafter, the petitioner consulted his advocate in Cuttack. Then, he filed the present appeal on 26.9.2002. That way, therefore, occasioned the delay in question in filing the appeal.
6. Senior Counsel Shri N. C. Panigrahi for petitioner canvasses for condoning delay in filing the appeal, Some decisions in support of his contentions are relied upon by him.
7. Shri Jayant Das, Senior Advocate for the opposite party urged like this :
Appeal being barred by prescription of time is not maintainable. Only upon sufficient cause being shown as contemplated under Section 16(3) of the Act delay in filing the appeal can be condoned. The fact that appellant having come to know that opposite party (Respondent) filed an appeal before Delhi High Court, brought the present appeal on 26.9.2002 is not a sufficient cause in the eye of law. This does not make out a case for condonation of delay. Appellant has failed to show sufficient cause preventing him from filing the appeal in time. Moreover, filing of an appeal by the Respondent before Delhi High Court in time cannot provide any cause for the appellant to file the present appeal beyond the period of limitation. According to Shri Das, Misc. Case is bound to be rejected on the above grounds.
8. I have heard learned counsel for the parties at length. Reasons shown for delay in bringing the appeal are perused. Crux of the problem is, whether delay in filing the appeal can be condoned in the present case. Apex Court has laid down the law on the subject. Let us see what the law is on the subject.
9. Section 16(3) of the Act says as follows :
"Every appeal under this Act shall be preferred within 60 days from the date of communication of the decision or order of Central Commission to the person aggrieved by the said decision or order :
Provided that the High Court may entertain an appeal after the expiry of the said period of 60 days if it is satisfied that aggrieved persons for sufficient cause have not preferred the appeal within the period of 60 days."
10. Law as quoted above makes it manifestly clear that the High Court may entertain an appeal after expiry of 60 days, if it is satisfied that there is sufficient cause for the same.
11. Apex Court, in AIR 1996 S.C. 1623 (State of Haryana v. Chandramani and Ors.) has taken the view that what constitutes "sufficient cause" cannot be laid down by hard and fast rules. Case of New India Insurance Company Ltd. v. Smt. Santi Mishra, (AIR 1976 S.C. 237) is relied upon by the Apex Court while deciding the question of limitation in the case under reference. Apex Court has observed that Section 5 of the Limitation Act, 1963 gives discretion to the Court to exercise if the appellant acted with reasonable diligence in prosecuting the appeal. Such discretion given by Section 5 should not be defined or crystalised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction.
12. In the case of Briz Inder Singh v. Kanshiram reported in 1997 Privy Council 156, it was observed that true guide for a Court to exercise the discretion under Section 5 of the Limitation Act is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Sakuntala Devi Jain v. Kuntala Kumari reported in 1969 S.C. 575, a Bench of 3 Judges have held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
13. In Concord of India Insurance Company Ltd. v. Nirmata Devi (AIR 1979 S.C. 1666) counsel misled a litigant into delayed pursuit in his remedy, It is a case of negligence of the Counsel. The default in delay was condoned. In the case of Lala Mata Din v. A. Narayanan reported in AIR 1970 S.C. 1953. Supreme Court held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a devised cover on liberal purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.
14. In State of Kerla v. E. K. Kuriyipe (1981) Supp. SCC 72, the view taken is that whether or not there is sufficient cause for condonation of delay is a question of fact dependent on the facts and circumstances of the particular case. In Smt. Milavi Devi v. Dinanath (1982) 3 S.C.C. 366 it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. In the said case, the Apex Court under Article 136 reassessed the ground and set aside the order made by the High Court. Ultimately the matter was remitted for hearing on merits. It was accordingly allowed. Delay was condoned and the case was remitted for decision on merits.
15. In the case of O. P. Kathpalia v. Lakhmir Singh (dead) reported in AIR 1984 SC 1744 a Bench of 3 Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In the case of Collector, Land Acquisition. Anantnag v. Mst. Katiji reported in AIR 1987 SC 1353, a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to go into substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves ends of justice that being the life-purpose for the existence of the Institution of Court.
16. Mr. Das persuaded me to reject the present petition for condonation of delay relying on 1967-(SC-2)-GJX-0168-SC (Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi and Anr.). View taken by the Apex Court in the case referred to above is that the Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently. Mr. Das has also relied on 1971-(SC-2)-GJX-0157-S,C (Assistant Collector of Customs v. Charan Das Malhotra), In the case relied upon by Mr. Das two questions were agitated before the Apex Court. The first question relates to nature of power of the Collector of Customs under proviso to second Sub-section of Section 110 of the Customs Act, 52 of 1960. Second question relates to Collector's power to extend the period for giving notice under Section 124(a) of the Act either after the initial period of six months or the extended period has already expired. The law as contemplated under Sub-section (2) of the said Act says that where, any goods are seized under Sub-section (1) and no notice in respect thereof is given under Clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the persons from whose possession they were seized :
Provided that the aforesaid period of six months, may on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. Mr. Das, learned counsel appearing on behalf of opposite party streneously argued not to condone delay in bringing the appeal relying on the above decisions. All that he urged is that sufficient cause being not shown in the present case, the appeal filed beyond the period of limitation is bound to be dismissed. In my considered view the decisions cited by Mr. Das as referred to above do not apply to the case at hand. That apart, Shri Das has cited the decision rendered in 1963 (SC-2)-GJX-0134-SC (Union of India v. Ram Charan and Ors.). In this case, the suit was abated. Appellant did not take steps within time to bring legal representatives on record. No satisfactory reason or sufficient cause in impleading legal representatives was shown. Even no step was taken within time to set aside the abatement. In such a case application to condone the delay was not allowed. In the facts and circumstances of the case, their Lordships held, sufficient cause being not shown the default was not accepted by the Court, as there was no valid reason for the appellant in knowing the death of the respondent within reasonable time. In the facts and circumstances of the case, the Apex Court held that "sufficient cause" is not to be liberally construed. Since facts of the reported case are quite distinguishable from the facts of the present case, I am of the considered view that the view taken in the reported case does not hold good in the case at hand.
17. Learned counsel for opposite party has referred to a decision in Union of India v. Ram Charan and Ors. in Civil Appeal No. 115 of 1962 (Appeals'by Special leave from the judgments and orders dated February 16 and 26, 1960 of the Punjab High Court in Civil Misc. No. 1212-C of 1959 and regular First Appeal No. 44 of 1955} decided on April 30, 1963. This is also an abatement of appeal. Their Lordships of the Supreme Court have observed that limitation for application to set aside abatement of appeal starts on death of Respondent and not from date of appellant's knowledge thereof. Inherent powers under Section 115, CPC is not to be invoked by Court to implead legal representatives of a deceased Respondent, if the suit had abated on account of appellant not taking appropriate steps within time to bring legal representatives of the deceased party on record and its application is not allowed on account of failure to satisfy the Court that there was sufficient cause for not impleading legal representatives and for not applying for setting aside the abatement within time. Expression "sufficient cause" is not to be liberally construed; whatever is alleged to explain away the default should not be readily accepted by Court; Court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time. In Ramlal, Motilal and Chhotelal v. Rewa Coal Fields Ltd. 1961-(SC-2)-GJX-0246-SC as relied upon by Shri Das, question of construction of Section 5 of the Indian Limitation Act was considered. In this case, appellant filed an application under Section 5 of the Limitation Act. There was one day's delay caused in filing the appeal. Reason shown for condonation of delay was Ramlal, one of the partners of the appellant's firm fell ill. He was in charge of the litigation, That was the last date for filing the appeal. In support of the application, he filed an affidavit and also a medical certificate showing that Ramlal was ill on the last date of filing appeal. The Respondent refuted contentions of the appellant stating that the appellant had not shown that its partners were diligent during the major portion of the period of limitation allowed for appeal; and since they put off the filing of the appeal till the last date of period of limitation, the illness of Ramlal cannot be said to be sufficient cause for condoning the delay though it was only one day's delay. The learned Judicial commissioner before whom the matter was subjudice came to hold that the appellant's partner had shown lack of diligence and negligence during whole period of limitation allowed for the appeal. Accordingly, he rejected the application for condonation of delay and dismissed the appeal.
18. Against order of the Court of the Judicial Commissioner, appellant preferred appeal before the Supreme Court who in turn condoned one day's delay in bringing the appeal. Their Lordships of the Supreme Court remitted back the case with a direction for disposal on merits in accordance with law. The appellant was directed to pay cost to the other side. What I have understood from the view of their Lordships is that to do substantial justice to the parties, the Court has to exercise judicial power and discretion judiciously. The question why the appellant waited till last date of filing the appeal has to be answered satisfactorily. That means, sufficient cause for not filing appeal is a condition precedent for exercise of discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. Even if sufficient cause is shown, the duty of the Court is to enquire whether or not delay can be condoned in exercise of discretion. Reliance may be placed in the case of Chunilal Basu and Anr. v. Chief Justice, High Court, Calcutta and Ors. reported in AIR 1974 CAL 326, wherein the Supreme Court came to hold that sufficient cause specified in the Section is a question of fact and being undefined judicial discretion to which it is subject is also not fully determined. However, the term has to be liberally construed where the party has not been negligent.
19. Regard being had to facts of the present case and applying the settled principles of law laid down in the decision above quoted, I am of the considered view that "sufficient cause" is a concept in law depending on facts and circumstances of each case. A straight jacket formula cannot be adopted to find out what constitutes sufficient cause. The parameters adopting which the Court considers sufficient cause preventing the appellant in filing appeal within time should be pragmatic but not dogmatic depending on facts and circumstances of each case. In the case at hand, appellant was not advised in time by his Advocate in Delhi to file an appeal against the impugned order. It is after he received such advice on 20.9.2002, the present appeal was filed on 26.9.2002 on consultation with his Advocate in Cuttack. In my considered view, this involves some time in the process for getting ready to file appeal against the impugned order. Therefore, in the fact situation the appellant who depends on his Advocate in Delhi on whom his faith has been reposed, is said to have shown sufficient cause preventing him from filing the appeal within time, that is, from last date of filing the appeal till the date on which it was actually filed. Taking into account all the above aspects, I hold that it is a fit case where the expression "sufficient cause" need to be liberally construed particularly when the appellant has not been found negligent. His Advocate in Delhi intimated the appellant to go for an appeal against the impugned order because the opposite party (respondent) filed an appeal in Delhi High Court. He ought to have communicated his advice, to his client (appellant) much earlier. This shows there was a communication gap between them. This lack of communication between the Counsel in Delhi and the appellant in Orissa cannot be lost sight of. For the mistake of his Advocate the appellant should not suffer when his right to prefer appeal in the Orissa High Court persists. Moreover, when tariff was fixed by the CERC on the petitioner (appellant) for supplying power from the Talcher Thermal Power Station, it involves substantial question of law for which substantial justice needs to be rendered to the parties. That apart, applying the dictum laid down by the Supreme Court in AIR 1987 S.C. 1353 (Collector, Land Acquisition v. Mst. Kafiji and Ors.), I am of the considered view that the application for condonation of delay cannot be rejected, on the contentions advanced by Mr. Das appearing for the respondent.
20. In the case of Collector. Land Acquisition v. Mst. Kafiji and Ors. (supra) while disposing of the above appeal preferred by the State of Jammu and Kashmir, their Lordships of the Supreme Court came to hold that Section 5 of the Indian Limitation Act empowers the Court to do substantial justice to the parties by disposing of the matters on merits. Applying the said principle settled by the Apex Court, I hold that this Court in order to do substantial justice to the parties should condone the delay in filing the appeal in order that the matter may be disposed of on merits. The observation of the Supreme Court in the reported case is that the expression "sufficient cause" employed by the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. Let me quote the principles which their Lordships have settled for taking a liberal approach in such matters :
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
21. While parting with the order, I would say that the rulings relied upon by Sri Das, appearing for the opposite party (respondent) are inapplicable to the present case in view of the facts and circumstances indicated above. The delay reported by the Stamp Reporter in filing the appeal under consideration has to be condoned in order to render substantial justice to the parties by this Court and non-explanation of each day's delay does not stand on its way.
22. In the ultimate result, the delay of 39 days in filing the appeal is hereby condoned in the light of the decisions relied upon by the learned Counsel for the petitioner (appellant). No costs.
Misc. Case is disposed of accordingly.