Jammu & Kashmir High Court - Srinagar Bench
State Of Jk & Ors vs Mohammad Aslam Khan on 6 May, 2022
Serial No. 15
Regular Causelist
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CDLSW No. 11/2019 [CM No. 40/2019]
State of JK & Ors.
..... Appellant(s)
Through: -
Ms. Asifa Padroo, AAG.
V/s
Mohammad Aslam Khan.
..... Respondent(s)
Through: -
Mr. Q. R. Shamas, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
JUDGMENT
Magrey (J);
01. The appellants have filed this application seeking the indulgence of this
Court in condoning the delay of 1130 days in filing the appeal against the
Judgment and order dated 14th October, 2015 passed in SWP No. 505/2008,
inter alia, on the grounds that after the receipt of the copy of the Judgement
dated 14th October 2015, passed by the learned single Judge in the Petition
filed by the respondent herein/Writ Petitioner, same was scanned at various
levels to derive satisfaction on the count whether or not the appeal is to be
filed. It is further stated that after going through the entire record of the case,
the matter was referred to the Department of Law, Justice & Parliamentary
Affairs for its views and the Department of Law, Justice & Parliamentary
Affairs, opined that an appeal be filed against the impugned Judgement passed
by the learned Single Judge.
02. The applicants have further averred that in the aforesaid process, there
was some delay, caused due to administrative exigencies. It has further been
stated that the Department of Law, Justice & Parliamentary Affairs, accorded
sanction for filing of LPA vide its letter dated 26th December 2018. After the
receipt of the sanction coupled with obtaining of necessary records, the matter
is stated to have been submitted to the Counsel representing the applicants at
the relevant point of time, who, thereafter, filed the appeal along with
application seeking condonation of delay. It has further been pleaded that the
appeal has an important bearing as far as the interests of the applicants are
concerned and that, in case the delay in filing the appeal is not condoned, it
will cause great prejudice to the applicants. It has further been averred that the
settled position of law is that since the decisions at the Government level are
taken at a slow pace, therefore, some amount of latitude has to be given to it
and the Government cannot be equated and treated on par with the private
parties in the matter of condonation of delay. The application is buttressed
with an Affidavit.
03. On notice, the Respondent/ Writ Petitioner filed had objections in
opposition to the application filed by the applicants seeking condonation of
delay, wherein it has been submitted that the application filed by the
applicants is cryptic inasmuch as there is no ground, much less a sufficient
one, for the Condonation of Delay, therefore, the application is liable to be
dismissed. It is further stated that in view of the Judgement dated 14th October,
2015, the learned Single Bench while allowing the writ petition, quashed the
impugned order bearing No. 684/2003 dated 18th June 2003, passed by the
Senior Superintendent of Police, Anantnag, with further observation that the
respondents/appellants herein shall treat the period absence of 79 days of the
writ petitioner/respondent herein as on duty and for that period, the writ
petitioner/respondent would be entitled to full salary. However, for the period,
from the date of his discharge from service till date, the petitioner/respondent
shall be paid 50% of salary only. It is pleaded that the applicants slept over
the matter for a long time. It is further averred that the applicants have no case
and in case the Judgement dated 14th October 2015 is not complied with, the
respondent/ Writ Petitioner will not be able to harvest the fruits of litigation.
04. We heard the learned appearing counsel for the parties, perused the
pleadings on record and have considered the matter.
05. It cannot be disputed that the Law of Limitation has to be applied with
all its vigor and rigor as prescribed by the Statute. One cannot escape the
consequences of the law of Limitation which clearly envisages that for the
extension of the period of limitation in a given case, the condition precedent
is that the applicants have to satisfy the Court that they have carved out a
sufficient cause in seeking the indulgence of the Court for not preferring the
appeal or application within the stipulated time. The Government cannot, as a
matter of rule, take umbrage under the plea that it has to be treated on a
different pedestal in the matter of the extension of time for filing the
appeal/application. No doubt, some latitude may be warranted to be given to
the Government promoting social justice, but it cannot escape the liability of
satisfying the Court that the appeal was filed with due diligence. The Courts
cannot come to the aid and rescue of the Government/ State where the
application for condonation of delay does not spell out sufficient cause and
the approach of the Government/ State, in making such an application, is
casual and cryptic.
06. In order to find out whether or not the applicants have been remiss and
callous in seeking the condonation of delay in filing the appeal, it is reiterated
here that the applicants have stated in the application that the copy of the
Judgment was perused at various levels to satisfy themselves whether the
appeal has or has not to be filed. It has also been stated that the entire record
was sent to the Department of Law, Justice and Parliamentary Affairs, and the
said Department accorded sanction to the filing of such appeal.
07. Testing the application of the applicants on the touchstone of the law
governing the subject, it will be profitable to quote paragraph Nos. 7 and 8 of
the law laid down in '2010 (4) JKJ 638 (HC)', hereinbelow, in verbatim:
"7. In the case P.K. Ramachandran v. State of Kerala, reported in
AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:
"Law of limitation may harshly affect a particular party but it has
to be applied with all its rigor 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."
8. In another case, the Hon'ble Supreme Court, while deliberating
upon the question of condonation of an inordinate delay of 264 days on an
application preferred by the Government, has observed as under:
"2. This special leave petition filed on November 16, 1993 is
delayed by 264 days. For quite some time in the past this Court has been
making observations as to the grave prejudice caused to public interest by
appeals brought on behalf of the Government being lost on the point of
limitation. Such observations have been made for over a few years in the
past. But there seems to be no conspicuous improvement as is apparent in
the present petition which is filed in November 1993. The explanation for
the delay, had better bet set out in petitioner's own words:
..........................................
..........................................
3. This explanation is incapable of furnishing a judicially
acceptable ground for condonation of delay. After the earlier observations
of this Court made in several cases in the past, we hoped that the matters
might improve. There seems to be no visible support of this optimism.
There is a point beyond which even the courts cannot help a litigant even
if the litigant is Government which is itself under the shackles of
bureaucratic indifference. Having regard to the law of limitation which
binds everybody, we cannot find any way of granting relief. It is true that
Government should not be treated as any other private litigant, as indeed,
in the case of the former the decisions to present and prosecute appeals
are not individual but are institutional decisions necessarily bogged down
by the proverbial red-tape. But there are limits to this also. Even with all
this latitude, the explanation offered for the delay in this case merely
serves to aggravate the attitude of indifference of the Revenue in protecting
its common Interests. The affidavit is again one of the stereotyped
affidavits making it susceptible to the criticism that the Revenue does not
seem to attach any importance to the need for promptitude even where it
affects its own interest."
Applying the ratio of the law laid down above to the instant case, there
has been a reckless delay of 691 days in filing the appeal and no satisfactory
explanation has come forward on that count except for routine words and
phrases. No doubt, a liberal approach has to be adopted in the matter of
condonation of delay when there is no gross negligence or deliberate inaction
or lack of bonafides on the part of the Government/ State, but, in the instant
case, the applicants took their own time to formulate an opinion that the appeal
has to be filed. It has, nowhere, been stated that they were, at all, prevented
earlier to take such a decision. It has also not been stated anywhere in the
application as to when and where the Judgment dated 12 th of February, 2018
passed by the learned Single Judge was perused and how much time was taken
by the Department of Law to accord sanction for filing the appeal. It was
incumbent for the applicants to do so to bring home the argument that the
Government/ State did not adopt dilatory tactics and that every action taken
had the semblance of fairness attached to it. The law laid down in "AIR 2011
SC 1237" enunciates this principle and it lays down as follows:
"........ 3/ This appeal emanates from the judgement of the Division Bench of the
Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in
W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by
the High Court because of inordinate delay of 239 days. The Division Bench of
the High Court, while dismissing the appeal, has observed as under:
"We have gone through the contents of the petition. The delay
occurred because of the respondents took their own sweet time to reach
the conclusion whether the judgement should be appealed or not. It is
not that they were prevented by any reason which is beyond their
control to take such a decision in time. Even otherwise, on merits of the
case also it does not appear to have any tenable ground of appeal. In
the circumstances, we do not see any merits in this petition."
4/ We have also gone through the condonation of delay application which
was filed in the High Court. In our considered view, the High Court was fully
justified in dismissing the appeal on the ground of delay because no sufficient
cause was shown for condoning the delay.
....................
6/ The Union of India ought to have been careful particularly in filing this
Civil Appeal because the Division Bench, by the impugned order, has dismissed
the appeal before it on the ground of delay. It is a matter of deep anguish and
distress that majority of the matters filed by the Union of India are hopelessly
barred by limitation and no satisfactory explanations exist for condoning
inordinate delay in filing those cases."
08. Resort can also be had to an elaborate and a lucid judgement of Hon'ble
the Supreme Court, reported in "(2013) 12 SCC 649", the relevant excerpts
of which are as under:
"........... 21.2. (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.
21.9. (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.
21.10. (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.
..................
21.12. (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.
21.13. (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
22.1 (a) An application for condonation of delay should be drafted with
careful concern and not in a haphazard 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.
....................
31. Neither leisure nor pleasure has any room while one moves an
application seeking condonation of delay of almost seven years on the ground
of lack of knowledge or failure of justice."
09. Risking repetition, what is stated here is that the applicants have been
negligent in prosecuting their claim within time and the explanation offered
for the delay in filing the appeal is neither plausible nor reasonable. The
application appears to have been drafted recklessly without giving a proper
account of the dates and details of the grounds agitated in it and recourse has
been had to the leisure and pleasure in moving the application and, to cap it
all, the applicants have not knocked the doors of the Court with clean hands
and the fair play has become a casualty at the hands of the applicants. This
appears to have been done only to scuttle the Judgment dated 12 th of February,
2018 passed by the learned Single Judge.
10. To substantiate this contention further, a cue can be had from the law
laid down by the Division Bench of this Court in COD No. 237/2016 (LPA
06/2016), wherein it has been held as follows:
"1. There is a delay of 310 days in filing the accompanying appeal.
The COD application which is under consideration is vague and without any
specific details explaining the day to day delay in filing the appeal. The only
explanation that has been given is that after receipt of the judgment, the
appellant examined the judgment which took, "sometime" and thereafter, the
judgment was sent to the State Law & Parliamentary Affairs, Ministry for
further action. It is further stated that the Law & Parliamentary Affairs,
Ministry examined the judgment and after examining the same, it was decided
that an LPA should be filled and this also took "considerable time" and
ultimately sanction for filing of the appeal was granted by the Law
Department.
2. No reasons have been indicated as to why in the first instance
examination of the judgment took time and why in the second instance, the
Law Department took considerable time in deciding to file an appeal.
3. Sufficient cause for the delay clearly has not been shown by the
applicants/ appellant. Consequently, the COD application is dismissed. The
accompanying appeal also stands dismissed."
11. In the above background, we are of the considered opinion that the
applicants have failed to explain the delay of 1130 days in filing the appeal.
In that view of the matter, the application for Condonation of Delay, in filing
the appeal, is rejected and, as a corollary thereto, the Letters Patent Appeal
(LPA) shall also stand dismissed as barred by time.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR:
06.05.2022
"Hamid"
i. Whether Judgment is reportable? Yes/ No.
ii. Whether judgment is speaking? Yes/ No.
ABDUL HAMID BHAT
2022.05.06 16:05
I attest to the accuracy and
integrity of this document
