Director Health Services Kashmir ... vs Iqbal Ahmad Baqal
2021 Latest Caselaw 350 j&K/2

Serial No. 215
Supplementary-2
Cause list.
              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                              ....
                        CM No.5457/2019
                       In RSA No.12/2019
                                      Reserved on: 23.3.2021
                                     Pronounced on: 25.3.2021

Director Health Services Kashmir and another.

                                                           ....... Appellant(s)
                                 Through: Mr. Shah Aamir, AAG
                          Versus
Iqbal Ahmad Baqal                                          ........ Respondent(s)
                                 Through: Mr. N. A. Beigh, Sr. Advocate


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

                                JUDGMENT

1. Civil Second Appeal is sought to be filed after delay of 13 years, 09

month and 20 days.

2. A suit for declaration was filed by plaintiff/respondent before the Court

of City Judge, Srinagar (for short "Trial Court") on 01st July, 2001,

which suit was decreed on 05.6.2003. The said suit was decreed in ex

parte as defendants after they were duly served remained absent and ex

parte proceedings were initiated against them. On 17.10.2001, evidence

in ex parte was recorded. Defendants filed their application seeking

setting aside of ex parte proceedings, but thereafter remained again

absent, which resulted in dismissal of their application seeking setting

aside of ex parte proceedings on 07.2.2003. So, it is clear from the

proceedings that defendants had knowledge of the pendency of the suit

CM No.5457/2019 In RSA No.12/2019

before the Trial court as they had filed an application seeking setting

aside of the order whereby defendants were proceeded in ex parte.

3. After suit was decreed, the defendants did not choose to file the Appeal

throwing challenge to the aforesaid judgement and decree within the

time prescribed under the Limitation Act. The Appeal, however, was

filed beyond the limitation period before the court of Principal District

Judge, Srinagar (for short "1st Appellate Court"). The said Appeal was

dismissed by the 1st Appellate Court, on the ground that the Appeal

being time barred and even no application, explaining cause of delay or

seeking condonation of delay, was filed by the appellant.

4. It appears that the appellant, when the execution proceedings were

taken up, filed a Revision Petition before the court of learned Principal

District Judge, Srinagar, which was also dismissed. Thereafter, writ

petition was filed before this Court, which too was dismissed in default.

For restoration of writ petition, an application seeking condonation of

delay of 550 days was filed, which was dismissed on 23.4.2015.

5. So, from the record on file produced by the appellant, itself, it is clear

that from the beginning appellant has been casual in contesting the case

than prosecuting the appeal or even the writ petition.

6. After having failed in the First Appeal, Revision and writ petition, the

appellant is now seeking extension of 13 years, 9 months and 20 days

in filing the Appeal by condoning the said delay. The delay is sought to

be condoned by the defendants/appellant on the following grounds:

a) That the suit was not maintainable as the State of J&K was not at all impleaded as a party defendant to the suit, as the decre/judgment is nullity;

CM No.5457/2019 In RSA No.12/2019

b) That as the impugned decree/judgment is nullity, same is not executable because the plaintiff had left the job when he failed to join the office of Block Medical Officer, Beerwah here he was transferred for further duties from the appellant Directorate office and instead instituted the civil suit by concealing real facts and misrepresenting the material facts;

c) That without issuing 80 CPC notice to the State through Chief Secretary as mandated by the law, suit cannot be maintained and the impugned decree is nullity against a public functionary in absence of the State being a party to a suit;

d) That the decree/judgment is without jurisdiction for the reason that the plaintiff was holding the post of Junior Assistant on Adhoc basis and could not have maintained the suit to seek appointment against a higher post of Law Officer/Legal Assistant, against which he was never appointed by the competent authority that, too, when such a post was not available on the staff strength/establishment of the Directorate of Health Service, Kashmir-Srinagar. Even the plaintiff holding the post of Junior Assistant (Adhoc) without there being express order of extension could not claim continuation and emoluments;

e) That the Ld. Court below has proceeded to pass the decree/judgment not only on flimsy grounds, but also on mere conjecture and surmises, which also renders the decree and judgment liable to be set aside;

f) That having regard to the peculiar facts and circumstances of the case, instead of dismissing the civil first appeal, it was very important for the appellate court to adjudicate upon the matter on merits and allow the said appeal and set aside the decree/judgment, which was without jurisdiction and nullity for the reasons mentioned above.

g) That the basic judgment/decree is passed in ex parte. However, even in ex parte, the plaintiff has not been able to produce the required and any significant evidence as is apparent on the face of the impugned decree/judgment. No any official witness, especially from the appellate Directorate of Health Services, Kashmir, where the plaintiff had worked since his initial appointment in 1990 against the post of Junior Assistant on Adhoc basis has been produced and only two outsiders/strangers to the lis were produced, who as would be seen have no connection with the case;

h) That the Ld. Court below was bound to take cognizance of the most important fact; that the plaintiff was just an adhoc employee appointed in 1990 and the suit was instituted in 03/2001 wherein the plaintiff in a very surreptitious manner had claimed release of salary from the month of 08/1998 that, too against the post, against which he could have never been appointed for the simple reason that there was no such post (Legal Assistant) borne on the staff strength of the appellant Directorate, besides claiming to be allowed to mark his attendance in the attendance register, which was itself a clue to the court, that the plaintiff was not working in the department;

i) That the appellant has shown earnestness to participate in the proceedings while filing application for setting aside the ex parte proceedings and filing civil first appeal and also objections to the execution petition on strong facts obtaining in the case and also on forceful grounds. There was sufficient reason for the appellate court to take cognizance of the issue and pass appropriate orders on merits of the case, but dismissal of the appeal as time barred has caused great miscarriage of justice.

CM No.5457/2019 In RSA No.12/2019

7. Objections have been filed. Respondent in his objections has stated that

no sufficient cause has been shown to condone the delay of 13 years,

09 months and 20 days.

8. I have heard learned counsel for parties and considered the matter.

9. The Supreme Court in Special Leave Petition (C) Diary No. 9217 of

2020 titled The State of Madhya Pradesh and Ors. Vs. BHERULAL,

while dealing with the issue of delay in filing the appeals, has observed

that the counselling to government and government authorities have

fallen on deaf ear and that the Court cannot be a place for the

governments to walk in when they choose, ignoring the period of

limitation prescribed. It has also been observed that governments and

their functionaries cannot claim that they have a separate period of

limitation when the departments are possessed with competent persons

familiar with court proceedings. The Supreme Court, after observing

the period of delay and casual manner in which application had been

worded, imposed costs on the State of Madhya Pradesh. In the above-

said case, 663 days' delay was sought to be condoned. The Supreme

Court, after deprecating the approach of State of Madhya Pradesh,

dismissed the Appeal. Paragraphs 4 and 5 thereof are reproduced

hereunder:

"4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

CM No.5457/2019 In RSA No.12/2019

10.Having regard to what has been stated above and in view of the

judgment of the Supreme Court supra, no good /sufficient ground has

been shown by the appellants/applicants to condone the un-explained

and inordinate delay of 13 years, 09 months and 20 days.

11. In view of the above, there is no merit in the instant application which

warrants dismissal, accordingly, same is dismissed.

12.Since application seeking condonation of delay has been dismissed, as

a corollary, Appeal being time barred is also dismissed.

(VINOD CHATTERJI KOUL) JUDGE Srinagar 25 .03.2021 Imtiyaz

Whether approved for reporting? Yes/No.

IMTIYAZ UL GANI 2021.03.25 01:21 I attest to the accuracy and integrity of this document