Jammu & Kashmir High Court - Srinagar Bench
Dated: 4Th Of October vs State Of Jammu & Kashmir And Ors on 4 October, 2023
Serial No. 09
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CONDL No. 305/2017
Dated: 4th of October, 2023.
Abdul Rashid Dar
... Appellant(s)
Through: -
Mr Shabir Ahmad Najar, Advocate.
V/s
State of Jammu & Kashmir and Ors.
... Respondent(s)
Through: -
Mr Sajjad Ashraf Mir, GA; and
Mr Syed Reyaz Khawar, Advocate with
Mr Abid Hameed, Advocate.
CORAM:
Hon'ble Mr Justice Tashi Rabstan, Judge
Hon'ble Mr Justice Rahul Bharti, Judge
(JUDGMENT)
(Tashi Rabstan-J):
01. The instant application has been filed on behalf of the
applicant/ appellant, who was the respondent No.8 in the writ petition,
seeking condonation of 645 days delay in filing the letters patent appeal
against a judgment dated 11th of December, 2015 passed by the learned
Single Judge in SWP No. 25/2010 filed by the writ petitioner, who is now
the respondent No.5 herein.
02. The precise ground taken in the application is that the applicant
was never ever served by the writ court and, therefore, he was neither aware
about the pendency of the writ petition nor of the passing of the impugned
judgment by the learned Single Judge. Since, the knowledge of the case
related development has come to the notice of the applicant at a belated
stage, as such, the present application is filed seeking condonation of delay
in filing the desired letters patent appeal against the impugned judgment so
passed by the learned Single Judge, of which the applicant/ appellant feels
aggrieved.
CONDL No. 305/2017
Page 2 of 5
03. Objections to the instant application stand filed on behalf of
the non-applicants/ respondents, resisting and controverting the averments
made in the application.
04. We have heard the learned counsel for the parties and have
perused the pleadings on record. We have also have gone through the writ
court record.
05. From the record, it is discernible that initially notice, at pre-
admission stage, was issued to all the respondents in the writ petition on
12th of January, 2010, including the respondent No.8/ the applicant herein.
However, despite service of the said postal notice, none had appeared
before the writ court on behalf of the respondent No.8 even after expiry of
the statutory period. Accordingly, the respondent No.8 was deemed to have
been served.
06. Subsequently, the writ petition was admitted to hearing on 9th
of December, 2011 and, accordingly, post admission notice was also issued
and addressed to all the respondents in the writ petition.
07. As per the note of the Registry dated 14th of February, 2012,
post admission notice was served on all the respondents, including the
respondent No.8/ applicant herein. The Registry, in terms of its note dated
30th of March, 2012, reported that none had caused appearance on behalf of
the respondent No.8/ applicant herein despite deemed post admission-
service.
08. Coming to the contents of the application in hand, admittedly,
there has been a long-running delay of 645 days in filing the appeal, but no
satisfactory explanation has come forward on that count except for routine
play of words and phrases. No doubt, a liberal approach is meant to be
adopted in the matter of condonation of delay provided there is no
deliberate negligence/ inaction or lack of bonafides on the part of the
applicant. But, in the instant case, the applicant, at his pleasure, took his
own time to formulate an opinion that the appeal is to be filed. It has
CONDL No. 305/2017
Page 3 of 5
nowhere been stated as to by what the applicant was prevented earlier to
take such a decision.
09. It cannot be disputed that the law of limitation has to be
applied with its intent and purpose as prescribed. The Courts cannot come
to the aid and rescue of an indolent applicant, whose application for
condonation of delay does not even spell out sufficient cause. The approach
of the applicant in making such application is casual and cryptic and taking
it for granted that condonation of delay in legal matters is a matter of just
demand and supply.
10. The law laid down by the Hon'ble Supreme Court in case
reported as 'AIR 2011 SC 1237' enunciates the aforesaid 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."
CONDL No. 305/2017
11. Resort can also be had to an elaborate and a lucid judgement of
the Hon'ble Apex 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."
12. In the case in hand, the applicant has been clearly absent
minded in pursuing his claim and case within time and the explanation
offered for the default and delay in filing the appeal is worth not reading,
lest considering. The has been drafted recklessly without giving a though to
account for the dates and details of the grounds alleged in it and an easy
recourse has been had with leisure and pleasure in moving the application.
This appears to have been done only to scuttle the judgment dated 11th of
December, 2015 passed by the learned Single Judge.
CONDL No. 305/2017
13. Viewed in the context of what has been said and stated above,
we are of the considered opinion that the applicant fails to explain the long
stretch delay of 645 days in filing the appeal. That being so, the application
for condonation of delay in filing the appeal is rejected and, as a
consequence, the letters patent appeal (LPA) shall also stand dismissed as
barred by time.
(Rahul Bharti) (Tashi Rabstan)
Judge Judge
SRINAGAR
October 4th, 2023
"TAHIR"
i. Whether the Judgment is reportable? Yes.
ii. Whether the Judgment is speaking? Yes.
