Ut Of J&K & Ors vs Guchhu Ram
2023 Latest Caselaw 1037 j&K

                                                                   S.No. 36



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


                                         CM 1698/2023,
                                         RFA No. 19/2023,CM 1699/2023




UT of J&K & Ors                                    ....Applicant/Appellant(s)
                             Through:- Mr. Ranjit Singh, AAG
Vs
Guchhu Ram                                                ....Respondent(s)
                          Through:- Ms. Deepali Arora, Advocate
                                   Mr. Rohit Lega, Advocate



Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                        ORDER

22.05.2023

(ORAL)

1. Through the medium of the instant application, condonation of delay

in filing the appeal against the judgment and decree dated 29.11.2021 passed

by the Court of Additional District Judge, Commercial Court, Jammu is

being sought by the applicants herein.

Facts:-

2. Respondent herein filed a summary suit under Order 37 of the Code of

Civil Procedure for recovery of amount covered in the suit from the

defendants applicants herein, which suit came to be decreed by the trial

Court in terms of judgment and decree dated 29.11.2021 supra after

observing that the defendants-applicants herein do not have any substantial

defence to set up against the suit.

2 CM 1698/2023 & CFA 19/2023

3. The explanation offered in para 2 of the application being relevant and

germane is extracted in extenso and is reproduced hereinunder:-

"2. That the copy of the judgment and decree dated 29.11.2021 passed by the Court of learned Additional District Judge, Commercial Court, Jammu in case Nos. 101/2021, titled 'Guchhu Ram Vs U.O of Jammu and Kashmir and others' was received in the office of appellants on 20.12.2022 and the case was referred to the Law Department on 31.01.2023 in view of issue involved for obtaining sanction for filing the appeal against the order/judgment and decree dated 29.11.2021. It is submitted that the matter was examined in the department of Law, Justice and Parliamentary Affairs and it was considered to file appeal. Thereafter the Law Department granted sanction vide letter No. LAW-LIT LAW-LT10/40/2023-10 dated 31.01.2023, which was received in the office of Addl. Advocate General on Feb 2023. After receipt of the sanction from the Law Department, the Addl. Advocate General requested the concerned department to furnish the relevant record in the case which was furnished and found deficient in certificate copy of the order dated 30.04.2021. Consequently, the Addl. Advocate General requested the department to apply for certified copy of the order on 03.02.2023, which was received on 03.02.2023."

4. Objections to the application have not been filed.

Heard learned counsel for the parties and perused the record.

5. Before proceeding to advert to the application in hand, it would be

pertinent to refer to the legal position relating to the law on the subject of

Section 5 of the Limitation Act. It is established that the law of limitation

has to be applied with all its rigor prescribed by a statute and although

Section 5 of the Limitation Act, provides for extension of period of

limitation in certain cases, the applicants seeking such extension, however,

has to satisfy the court that there has been "sufficient cause" for not

preferring the appeal, revision, petition or application within the prescribed

period.

3 CM 1698/2023 & CFA 19/2023

The Apex Court has also laid down various principles of law on the

subject and in case titled as "State of Madhya Pradesh and Ors. v.

Bherulal" reported in 2020 (10) SCC 654, at paras 3 and 5 has observed as

under:-

3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government. This position is more than elucidated by the judgment of this Court in Post Master General & Ors. v. Living Media India Ltd. (2012) 3 SCC 563 where the Court observed as under:

"27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogentreasons 4 CM 1698/2023 & CFA 19/2023

sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of 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."

It is also laid down by the Apex Court in case titled as " Perumon

Bhagvathy Devaswam vs. Bhargavi Amma" reported in 2008 (8) SCC

321 in para 13 (iii) that "the decisive factor in condonation of delay, is not

the length of delay, but sufficiency of a satisfactory explanation."

A reference to the Judgment of the Apex Court passed in case titled

as "P. K. Ramachadran vs. State of Kerala" reported in AIR 1998 SC

2276 would also be significant wherein at para 6 following has been laid

down:-

6. "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the stature 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."

6. Keeping in mind the aforesaid position of law and the principles of

law and reverting back to the application in hand, it is an admitted fact that

the judgment and decree dated 29.11.2021 supra came to be passed in

presence of the counsel for the defendants-applicants herein and thus the

defendants-applicants herein can be said to have full knowledge of the 5 CM 1698/2023 & CFA 19/2023

judgment and decree, yet in the application it is being stated that the

applicants herein received the same in the office on 20.12.2022 i.e almost

after a year, whereafter the case is stated to have been referred to the Law

Department for obtaining a sanction which is stated to have been granted on

31.01.2023 and whereupon after preparation of the appeal, it is being stated

that the appeal came to be filed along with instant application after a

certified copy of the judgment and decree was received on 03.02.2023.

7. Record reveals that the instant application came to be filed on

28.02.2023 before this Court. The applicants herein have not explained in

the application as to what happened from the date of passing of the judgment

and decree w.e.f. 29.11.2021 till 20.12.2022 on which date the applicants

herein claim to have received copy of the same. In this regard, no

explanation has been given in the application.

It is significant to note herein that the period of limitation came to be

extended by the Apex Court on account of outbreak of COVID-19 pandemic

with effect from 15.03.2020 upto 28.02.2022 and even taking into

consideration the said period excluding the period right from 29.11.2021 till

28.02.2022, applicants herein have failed to explain in the application as to

what prevented them from filing the appeal from the date commencing

28.02.2022. The application patently is cryptic in nature having been filed

with a casual explanation under the impression that in seeking condonation

of delay, the expression "sufficient cause" would receive a liberal

construction in favour of the applicants herein being a department of the

Government.

6 CM 1698/2023 & CFA 19/2023

8. In view of the aforesaid position and having regard to the principles of

law supra, the explanation offered cannot be accepted. Resultantly,

application fails and is rejected, as a consequences whereof, the

accompanying appeal shall also stand dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 22.05.2023 Vijay Whether the order is speaking; Yes Whether the order is reportable: Yes