Jammu & Kashmir High Court
Ut Of J&K Through vs Dharmarth Counsil Through Its ... on 6 March, 2024
Author: Tashi Rabstan
Bench: Tashi Rabstan, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 29.02.2024
Pronounced on:06.03.2024
LPA No. 196/2023
CM No. 6558/2023
1. UT of J&K through: ....Petitioner(s)/Appellant(s)
a. The Chief Secretary, Government of Jammu
and Kashmir/Srinagar.
b. The Principal Secretary, Home Department,
Government of J&K/Srinagar.
2. The Director General of Police, Jammu
and Kashmir, Jammu
Through :- Mrs. Monika Kohli, Sr. AAG
V/s
1. Dharmarth Counsil through its President as he is ....Respondent(s)
presently is Maj. General (Rtd) R. S. Jamwal (AVSM), age
68 years R/O 1 D/D Ext. 11 Gandhi Nagar, Jammu.
2. Shri Raghunathji Raghunath Mandir, Jammu.
Through :- Mr. R. S. Thakur, Senior Advocate with
Mr. Ashwani Thakur, Advocate.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Tashi Rabstan,J:
1. CM No. 6558/2023 is an application filed by the State seeking
condonation of delay of 366 days in filing the appeal.
2. In support of her submissions, Mrs. Monika Kohli, Senior AAG
appearing for the applicants/appellants submits that the judgment against which
the appeal is sought to be filed is passed on 31.08.2022. The certified copy of the
said judgment was received on 17.09.2022 after 16 days. The file was processed
for sanction and on 08.08.2023, the sanction was obtained. On 01.11.2023, the
appeal was filed only after 84 days of obtaining the sanction. Hence, the delay of
366 days is caused in filing the appeal.
3. Learned counsel for the applicants/appellants submits that the delay
caused on the part of the State in filing the appeal is neither intentional nor
willful.
4. Learned counsel for the applicants submits that the grounds in the
appeal are strong on merits and the applicants/appellants are sure to succeed in
the appeal and in case the delay is not condoned, there would be grave
miscarriage of justice.
5. In support of her submissions, Mrs. Monika Kohli, learned Sr. AAG
has placed reliance on the judgments of the Supreme Court in the case of O. P.
Kathpalia v. Lakhmir Singh & Ors, reported as (1984) 4 SCC 66; Collector,
Land Acquisition, Anantnag v. Katiji reported as (1987) 2 SCC 107; Appeal
(Crl.) No. 485/2005 in the case of State of Nagaland v. Lipok AO & Ors,
decided on 01.04.2005; and judgment of this court in passed in LPA NO.
26/2023 titled Union Territory of J&K and Ors. v. Abdul Khaliq and others
decided on 10.08.2023.
6. On the other hand, Mr. R. S. Thakur, learned Senior Advocate assisted
by Mr. Ashwani Thakur, Advocate submits that the condonation of delay
application is without any basis. According to him, it is fairy tale. There is no
ground let alone plausible ground urged in the application which would goad the
court to condone the delay. Lastly, it is urged that the condonation of delay
application being a charade, may kindly be rejected forthwith with heavy costs.
7. In support of his submissions, learned Senior Advocate Mr. R S
Thakur has relied upon the judgments of the Supreme Court of India in the case
of Majji Sannemma @ Sanyasirao v. Reddy Sridevi And Others, reported at AIR
2022 (SC) 332; and Sheo Raj Singh v. Union of India & Anr. reported at AIR
2023 SC 5109.
8. Heard learned counsel for the applicants and perused the application.
9. On perusal of the condonation of delay application, it appears that the
application accompanied with appeal is an afterthought. The condonation of
delay application accompanied with appeal was filed on 01.11.2023 only after
the applicants were got served contempt notices in CCP(S) No. 352/2022 for non
implementation of the judgment dated 31.08.2022 passed by the learned Single
Judge. Thus, in order to scuttle and thwart the contempt proceedings, they chose
to file the present application accompanied with appeal.
10. Further perusal of the condonation of delay application would show
that the application has been drafted very casually without application of mind,
as we observed that para 11 of the delay condonation application contains the
phrase 'acquittal appeal' which is preposterous and irrelevant here.
11. There is also no plausible and cogent explanation forthcoming in the
application. Besides, it is also not a case where the judgment impugned has been
passed exparte and the applicants were oblivious of the same. The judgment was
passed on 31.08.2022 and the applicants were represented by Mr. Raman
Sharma, AAG before the learned Single Judge. No convincing explanation has
been tendered in the application except the inter-departmental communications,
which could justify the time which the applicants have taken in filing the appeal.
12. It is a sordid state of affairs to note that the applicants took clear 11
months to obtain sanction from competent authority. The reasons shown for
delay in the application in our view are not worth-having, that could sway this
court and dissuade us to condone the delay.
13. We are fortified in our view by the judgment of Hon'ble the Supreme
Court in appeal bearing Civil Appeal No. 2474-2475 of 2012 (Arising out of
SLP (C) Nos.7595-96 of 2011 dated 24.02.2012) titled Office of the Chief Post
Master General & Ors. V. Living Media India Ltd. and Another, wherein the
Supreme Court opined on no proper explanation for delay as:-
"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 bona fide 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.
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 cogent reasons sufficient to condone
such a huge delay. Accordingly, the appeals are
liable to be dismissed on the ground of delay."
14. Hon'ble the Supreme Court while dismissing SLP (Civil) Diary
No(s).19846/2020 titled as Union of India Vs. Central Tibetan Schools Admin
& Ors., on 04.02.2021 on account of delay observed as under:-
"We have repeatedly being counselling through our
orders various Government departments, State
Governments and other public authorities that they
must learn to file appeals in time and set their house
in order so far as the legal department is concerned,
more so as technology assists them. This appears to
be falling on deaf ears despite costs having been
imposed in number of matters with the direction to
recover it from the officers responsible for the delay
as we are of the view that these officers must be
made accountable. It has not had any salutary effect
and that the present matter should have been
brought up, really takes the cake!
The aforesaid itself shows the casual
manner in which the petitioner has approached this
Court without any cogent or plausible ground for
condonation of delay. In fact, other than the
lethargy and incompetence of the petitioner, there is
nothing which has been put on record. We have
repeatedly discouraged State Governments and
public authorities in adopting an approach that
they can walk in to the Supreme Court as and when
they please ignoring the period of limitation
prescribed by the Statutes, as if the Limitation
statute does not apply to them. In this behalf, suffice
to refer to our judgment in the State of Madhya
Pradesh &Ors. v. Bheru Lal [SLP [C] Diary
No.9217/2020 decided on 15.10.2020] and The State
of Odisha & Ors. v. Sunanda
Mahakuda [SLP [C] Diary No. 22605/2020
decided on 11.01.2021]........................."
15. Hon'ble the Supreme Court in Majji Sannemma @ Sanyasiroa v.
Reddy Sridevi & others, AIR 2022 SC 332 in paragraphs 7.4 and 8 has held as:
"7.4. In the case of Basawaraj (supra), it is observed and held
by this Court that the discretion to condone the delay has to be
exercised judiciously based on facts and circumstances of each
case. It is further observed that the expression "sufficient cause"
cannot be liberally interpreted if negligence, inaction or lack of
bona fides is attributed to the party. It is further observed that
even though limitation may harshly affect rights of a party but it
has to be applied with all its rigour when prescribed by statute. It
is further observed that in case a party has acted with
negligence, lack of bona fides or there is inaction then there
cannot be any justified ground for condoning the delay even by
imposing conditions. It is observed that each application for
condonation of delay has to be decided within the framework laid
down by this Court. It is further observed that if courts start
condoning delay where no sufficient cause is made out by
imposing conditions then that would amount to violation of
statutory principles and showing utter disregard to legislature.
8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and considering the
averments in the application for condonation of delay, we are of
the opinion that as such no explanation much less a sufficient or
a satisfactory explanation had been offered by respondent Nos.1
and 2 herein - appellants before the High Court for condonation
of huge delay of 1011 days in preferring the Second Appeal. The
High Court is not at all justified in exercising its discretion to
condone such a huge delay. The High Court has not exercised
the discretion judiciously. The reasoning given by the High Court
while condoning huge delay of 1011 days is not germane.
Therefore, the High Court has erred in condoning the huge delay
of 1011 days in preferring the appeal by respondent Nos.1 and 2
herein - original defendants. Impugned order passed by the High
Court is unsustainable both, on law as well as on facts."
16. In Sheo Raj Singh v. Union of India & Anr, reported at AIR 2023 SC
5109, the Supreme Court in Para 29 of the above judgment has held as:
"29. Considering the aforementioned decisions, there cannot
be any quarrel that this Court has stepped in to ensure that
substantive rights of private parties and the State are not
defeated at the threshold simply due to technical considerations
of delay. However, these decisions notwithstanding, we reiterate
that condonation of delay being a discretionary power available
to courts, exercise of discretion must necessarily depend upon
the sufficiency of the cause shown and the degree of acceptability
of the explanation, the length of delay being immaterial.
Sometimes, due to want of sufficient cause being shown or an
acceptable being proffered, delay of the shortest range may not
be condoned whereas, in certain other cases, delay of long
periods can be condoned if the explanation is satisfactory and
acceptable. Of course, the courts must distinguish between an
'explanation' and an 'excuse'. An 'explanation' is designed to
give someone all of the facts and lay out the cause for something.
It helps clarify the circumstances of a particular event and
allows the person to point out that something that has happened
is not his fault, if it is really not his fault. Care must however be
taken to distinguish an 'explanation' from an 'excuse'. Although
people tend to see 'explanation' and 'excuse' as the same thing
and struggle to find out the difference between the two, there is a
distinction which, though fine, is real. An 'excuse' is often
offered by a person to deny responsibility and consequences
when under attack. It is sort of a defensive action. Calling
something as just an 'excuse' would imply that the explanation
proferred is believed not to be true. Thus said, there is no
formula that caters to all situations and, therefore, each case for
condonation of delay based on existence or absence of sufficient
cause has to be decided on its own facts. At this stage, we cannot
but lament that it is only excuses, and not explanations, that are
more often accepted for condonation of long delays to safeguard
public interest from those hidden forces whole sole agenda is to
ensure that a meritorious claim does not reach the higher courts
for adjudication."
17. Having regard to above referred judgments and facts of the case, we
hold that the applicants have filed this application in a cavalier manner as a
routine matter and that too without application of mind. The lackadaisical
tendency exhibited by the State is writ large in the present case. Despite the
availability of huge manpower and machinery at its disposal, the State has dealt
with the matter with supine indifference. The reasons for delay are not
forthcoming from the application. Much to our chagrin, the State has taken a
year in obtaining sanction. Even after obtaining sanction, it has taken 84 days to
file the appeal. The reason for delay on this count is not whispered in the
application to our utter surprise, let alone satisfactorily explained despite the fact
that the applicants were supposed to explain each and every day's delay.
18. The judgments relied upon by learned Sr. AAG are quite
distinguishable as they are on different facts, and are not applicable to the
present case.
19. In view of the facts and circumstances of the case, discussions made
hereinabove and the settled law position enunciated above, we view that delay of
366 delays in filing the appeal is not satisfactorily explained. The condonation of
delay application, in view of what has been stated and analyzed above, is
accordingly dismissed.
20. CM No. 6558/2023 is dismissed.
21. As a result, the appeal is dismissed and the interim direction granted
by this court on 06.11.2023 is vacated.
22. There shall be no order as to costs.
(Puneet Gupta) ) (Tashi Rabstan)
Judge Judge
Jammu:
06.03.2024
Raj kumar
Whether the order is speaking? Yes/No.
Whether the order is reportable? Yes/No.
