Ama Lone And Others vs Abdul Rashid Rather And Another
2021 Latest Caselaw 388 j&K/2

Serial No. 206
After notice
Cause list.
                 HIGH COURT OF JAMMU AND KASHMIR
                            AT SRINAGAR
                                 ....
                           CM no. 3974/2019
                          in RSA No. 08/2019

Ama Lone and others
                                                             ....... Petitioner(s)
                                  Through: Mr. Rizwan-un-Zaman, Adv.
                           Versus

Abdul Rashid Rather and another
                                                            ........ Respondent(s)
                                  Through: None


CORAM:
   HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                    ORDER

1. Petitioners are seeking extension of time for condoning the delay in filing the Civil Second Appeal.

2. Briefly stated, the facts of the case are that a Suit came to be filed by Abdul Khaliq Lone against the Abdul Rashid Rather for seeking declaration and cancellation of decree. The said suit was dismissed by the Trial court vide judgment/decree dated 29.10.2005. The said Judgment/decree was sought to be challenged by the appellant before court of Principal District Judge, Kulgam (for short "First Appellate Court"). Since there was delay in filing the Appeal, an application was filed before the First Appellate Court seeking condonation of delay. The said application was, however, dismissed vide order dated 30.6.2012, holding that the plaintiff/appellant has failed to show sufficient cause for condoning delay in preferring the Appeal within a limitation period.

3. The appellant/plaintiff, after expiry of more than four years, has approached this Court with the instant application seeking condonation of delay in filing Civil Second Appeal. The order, whereby application of plaintiff/appellant was dismissed, was passed by the First Appellate Court on 30.06.2012 and the instant application seeking condonation of

CM no. 3974/2019 in RSA No. 08/2019

delay in filing the Appeal has been moved on 13.6.2019, i.e., after a period of little less than seven years (2438 days).

4. The grounds stated in the application, which prevented the appellant from approaching this Court, are that the proceedings before the Trial court as well as before the 1st Appellate Court were being pursued and looked after by the deceased, Abdul Khaliq Lone, father of appellants 2 and 3, who had filed a Suit challenging the decree passed on 20.4.1996. The Appeal being time barred was dismissed on 30.6.2012. It is claimed that from 30.6.2012 to 11.11.2017, Abdul Khaliq Lone fell seriously ill and was not able to follow the case and know the status of the case. It is contended that appellants were looking after their father and lost track of the case and it was only in the month of April, 2019, that they came to know about the status of the case and learnt about dismissal of the case on 30.06.2012 by learned 1st Appellate Court. This is a precise story projected by the applicants to seek condonation of delay in filing the Appeal.

5. The Appeal against the judgment and decree passed by the Trial court was time barred. Explanation submitted before the 1st Appellate Court seeking condonation of delay and extension of time in filing the Appeal, was not found sufficient and, accordingly, Appellate court rejected the same.

6. The above facts have been given, so as to take the same into account while considering the application for condonation of delay, because it has been observed in a number of judgments that substantial justice being paramount and pivotal and the technical considerations should not be given undue and uncalled for emphasis. There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for, the courts are not supposed to legalize injustice but are obliged to remove injustice.

7. It is true that courts should always take liberal approach in the matter of condonation of delay but while considering the application the court should also find out whether there is any merit in the appeal.

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8. In Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448, it has been held by the Supreme Court that 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. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest.

9. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows:

"15. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, 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.

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, behavior 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.

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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 harboring 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-challant manner requires to be curbed, of course, within legal parameters."

10.Appellant is seeking condonation of delay in filing the Appeal to challenge the order dated 30.06.2012 passed by the 1st Appellate Court as also judgement and decree dated 29.10.2005, passed by Trial Court. There is a delay of 2438 days in filing the Civil Second Appeal. For condoning this delay, the appellants are required to explain it by showing sufficient and reasonable grounds which prevented them from filing the appeal within the time provided. It is clear from the record on the file that no sufficient cause has been shown by appellants to seek condonation of inordinate delay of 2438 days.

11.There is no satisfactory explanation or reasonable and sufficient cause/grounds, disclosed by appellants to explicitly show what prevented them from filing the appeal within the stipulated time. The grounds taken are without any basis and there is no sufficient cause warranting condonation of delay. Even otherwise, had there been merit in the grounds challenging the order/judgement impugned and had it been the case where merit would have become the casualty of delay, this Court

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may have, in order to prevent miscarriage of justice, taken a view otherwise which is warranted in the circumstances of the case. If this application for condonation of delay, which does not disclose any sufficient and reasonable ground or cause, is allowed and appeal is permitted to be filed after unexplained and inordinate delay of 2438 days, it would be respondents herein who will be at the receiving end.

12.For the reasons discussed above, I do not find any reason or ground to allow this application and, accordingly, the application is dismissed. Resultantly the appeal stands dismissed being barred by limitation.

(VINOD CHATTERJI KOUL) JUDGE Srinagar 05.4.2021 Imtiyaz

IMTIYAZ UL GANI 2021.04.18 21:38 I attest to the accuracy and integrity of this document