Jammu & Kashmir High Court - Srinagar Bench
Rafiqa Akhtar vs Ut Of J&K And Ors on 12 May, 2022
Serial No. 34
Supplementary cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
CM No. 2293/2022 in
LPA No. 77/2022
CM No. 2294/2022
Rafiqa Akhtar
..... Appellant(s)
Through: -
Mr. Junaid Rashid, Advocate
V/s
UT of J&K and Ors.
..... Respondent(s)
Through: -
Mr. Feroz Ahmad Sheikh, Dy. AG
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Puneet Gupta, Judge
(ORDER)
12.05.2022
Magrey (J);
01. The appellant has filed this application seeking the indulgence
of this Court in condoning the delay of 805 days in filing the appeal
against the Judgment and order dated 11.12.2019 passed in SWP No.
90/2009 as well as order dated 31.01.2022 passed in RP No. 75/2019,
inter alia, on the grounds that the impugned order dated 31.01.2022,
in Review petition No. 75/2019, was passed through virtual mode, as
the Hon'ble Court was closed for physical hearing owing to spread of
Covid-19 deadly virus. It is submitted that due to lack of
communication, the counsel could not apprise the applicant about the
impugned order so that the appropriate remedy could have been
exhausted well on time. It is further submitted that the records of the
Review Petition were not traceable in the Registry as the Review
petition was heard through virtual mode from Jammu Wing of this
Court and, as such, the impugned order dated 31.01.2022, was neither
uploaded nor was the said order available in the Registry for a
considerable period.
02. The applicant has further averred that in the aforesaid process,
there was some delay, caused due to Covid-19. It has further been
stated that the applicant came to know about the order and immediately
took steps to obtain the certified copy of the judgment and after seeking
legal advice, has drafted the accompanying appeal. The delay if any
caused in filing the present appeal deserved to be condoned in the
peculiar circumstances of the case. It has further been pleaded that the
appeal has an important bearing as far as the interests of the applicant
is concerned and that, in case the delay in filing the appeal is not
condoned, it will cause great prejudice to the applicant.
03. We have heard the learned appearing counsel for the parties,
perused the pleadings on record and have considered the matter.
04. 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 applicant has to satisfy the
Court that he has carved out a sufficient cause in seeking the
indulgence of the Court for not preferring the appeal or application
within the stipulated time. The Courts cannot come to the aid and
rescue of the applicant where the application for condonation of delay
does not spell out sufficient cause and the approach of the applicant, in
making such an application, is casual and cryptic.
05. Testing the application of the applicant 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 805 days in filing the appeal and no
satisfactory explanation has come forward on that count except for
routine words and phrases. 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."
06. 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."
07. Risking repetition, what is stated here is that the applicant has
been negligent in prosecuting his claim within time and the explanation
offered for the delay in filing the appeal is neither plausible nor
reasonable, the applicant has not knocked the doors of the Court with
clean hands and the fair play has become a casualty at the hands of the
applicant. This appears to have been done only to scuttle the Judgment
dated 11.12.2019 passed in SWP No. 90/2009 and order dated
31.01.2022 passed in RP No. 75/2019 by the learned Single Judge.
08. 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."
09. In the above background, we are of the considered opinion that
the applicant has failed to explain the delay of 805 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:
12.05.2022
"Mohammad Yasin Dar"
MOHAMMAD YASIN DAR
2022.05.12 16:41
I attest to the accuracy and
integrity of this document
