Jammu & Kashmir High Court
Shiv Lal vs Vaishno Devi And Others .... ... on 10 December, 2021
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CONC 93/2013
IA No. 1/2018
In
CSA 32/2013
IA No. 33/2013
Shiv Lal ....Applicant(s)
Through: - Mr. Vinod Kotwal, Advocate
v/s
Vaishno Devi and others .... Non-applicant/Respondent(s)
Through: - None
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. In the instant application, applicant seeks condonation of delay in
filing the Civil 2nd Appeal against the judgment/decree dated 30.10.2012
passed by the learned Additional District Judge, Udhampur in case titled Mst.
Vaishno Devi and others vs. Shiv Lal and others.
2. The background facts those emerge from the case in hand are that
mother of the respondent Nos. 1 to 3 herein, namely, Hukmi Devi filed a suit
before the Munsiff, Udhampur against the applicant herein and four other
persons seeking cancellation of a will deed executed on 18.01.2000, on the
ground of fraud and misrepresentation.
3. During the pendency of the suit, upon death of Mst. Hukmi Devi,
the respondents 1 to 3 herein came to be substituted. The applicant herein
2 Cond 93/2013
being defendant before the trial court is stated to have filed written statement
to the suit and that upon framing of the issues by the trial court and leading
evidence thereof by the respective parties, the trial court vide judgment/decree
dated 04.03.2009 is stated to have decreed the suit, cancelling the will deed
dated 18.01.2000. The said judgment/ decree is stated to have been assailed in
1st appeal by the respondents 1 to 3 herein before the Court of Additional
District Judge, Udhampur, which court is stated to have disposed of the appeal
in terms of judgment/decree dated 30.10.2012. The said judgment/decree is
being assailed in the Civil 2nd Appeal accompanied to the instant application.
4. It is being stated in the instant application that there has been delay
of 52 days in filing the appeal and that the delay is neither deliberate nor
intentional, but due to petitioner's sickness as he was suffering from Typhoid
and was confined to bed. The said contention is being supported by medical
prescriptions and clinical test reports. It is stated that immediately after
recovering from the illness, the applicant contacted his lawyer, who prepared
the appeal and the instant application without any further delay.
5. Before proceeding to analyze the application and grounds urged
therein, it would be appropriate and advantageous to refer to the legal position
enumerated by the Apex Court on the subject of condonation of delay.
6. The law on the subject of section 5 of the Limitation Act is no
more res integra and there is a long line of decisions rendered and delivered
by the Hon'ble Apex Court on the subject.
7. It is established that the law of limitation has to be applied with all its
rigor prescribed by a statute. Although Section 5 of J&K Limitation Act
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Samvat, 1995 provides for extension of the period of limitation in certain
cases, and applicant seeking such extension is required to satisfy the court that
there has been a sufficient cause for not preferring the appeal or making the
application within the prescribed period.
8. The Hon'ble Apex Court in Perumon Bhagvathy Devaswam
vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated besides
others the following principle qua an application under Section 5 of the
Limitation Act:
"(iii) The decisive factor in condonation of delay, is not
the length of delay, but sufficiency of a satisfactory
explanation."
9. A reference to a judgment of the Hon'ble Apex Court reported in
AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would
also be appropriate and advantageous, wherein at para 6 following is noticed.
"Law of limitation may harshly affect a particular party
but it has to be applied with all its rigour when the statute
so prescribe and the Courts have no power to extend the
period of limitation on equitable grounds. The discretion
exercised by the High Court was thus, neither proper nor
judicious. The order condoning the delay cannot be
sustained. This appeal, therefore, succeeds and the
impugned order is set aside. Consequently, the
application for condonation of delay filed in the High
Court would stand rejected and the Miscellaneous First
Appeal shall stand dismissed as barred by time. No
costs."
10. Keeping in mind the above legal position enunciated by the Apex
Court what emerges from the perusal of the record and averments of the
application is that there is no plausible reason for condoning the delay in filing
the appeal. The averments made by the applicant in the instant application do
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not constitute sufficient cause for condonation of delay. No plausible ground
has been expressed in the application as would suggest that the delay caused
in filing the appeal, was reasonable.
11. The application in hand seemingly is filed with the impression
that in seeking condonation of delay, the expresses "sufficient cause" would
receive as liberal construction in favour of the applicant being related to an
agency of the Government. It is however, manifest and without any doubt that
the explanation offered by the appellant /applicant in the application in hand
cannot by any sense of imagination said to be sufficient, plausible, and cogent.
The explanation per se is cryptic and casual.
12. Viewed in the context what has been observed, considered and
analyzed hereinabove, the application in hand is found to be without any merit
and is, accordingly, dismissed, as a consequence whereof the accompanying
appeal shall also stand dismissed.
13. Dismissed along with connected IA(s).
(JAVED IQBAL WANI)
JUDGE
Jammu
10.12.2021
Bir
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No.
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