Union Territory Of J And K And Ors vs Bilal Ahmad Khan
2025 Latest Caselaw 1085 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Union Territory Of J And K And Ors vs Bilal Ahmad Khan on 20 May, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                S. No.31
                                                                Regular List

,,,   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT SRINAGAR


                           CM No.2047/2024 IN RSA 8/2024

UNION TERRITORY OF J AND K AND ORS.
                                                           .....Appellant(s)
                               Through: Mr.Mohsin Qadiri, Sr.AAG with
                                        Ms. Nadiya Abdulla.
            V/s

BILAL AHMAD KHAN
                                                       ... ..Respondent(s)

                              Through : Mr. Rizwan-u-Zaman, Advocate
CORAM:
   HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 ORDER

20 05.2025

1. The appellants have filed the accompanying appeal against

order dated 02.11.2019 passed by learned Additional District

Judge, Anantnag, whereby application for condonation of

delay in filing the appeal has been dismissed and

consequently the appeal against the judgment and decree

dated 02.04.2007 passed by learned Sub Judge, Anantnag

has also been dismissed. Alongwith the appeal the appellants

have filed an application for condonation of delay in filing

the appeal.

2. Heard and considered.

3. It appears that a suit came to be filed by the respondent

against the appellants herein before the Court of Sub Judge Anantnag (hereinafter referred to as "the trial Court"),

whereby declaration was sought by the plaintiff that order

bearing No.75 of 2003 dated 18.01.2003, by virtue of which

the respondent/plaintiff was discharged from service, be

declared as null and void. The case of the plaintiff before the

trial court was that he was working as a Follower in J&K

Police Department and that he was, by virtue of order dated

18.01.2003, discharged from service without following the

procedure established by law.

4. It also appears that the appellants/defendants filed their

written statement before the trial Court but thereafter stopped

appearing in the case. The learned trial Court after framing

issues passed an ex parte judgment and decree dated

02.04.2007, whereby order of discharge of the plaintiff was

declared as null and void and the defendants were directed to

permit the plaintiff to resume his duties as Follower and to

pay salary to him.

5. The aforesaid judgment and decree came to be challenged by

the appellants/defendants before the Court of Additional

District Judge Anantnag (hereinafter referred to as "the 1st

Appellate Court"). The appeal was filed on 08.07.2009 and

the appellants also sought condonation of delay in filing the

appeal. By virtue of impugned order dated 02.11.2019, the

CM No.2047/2024 in RSA No.08/2024 2|P a g e learned 1st Appellate Court dismissed the application for

condonation of delay and consequently the appeal was also

dismissed.

6. The aforesaid order passed by the 1st Appellate Court

alongwith judgment and decree passed by the trial Court on

02.04.2007, have been challenged by the appellants by virtue

of appeal before this Court which has been filed on

15.04.2024. As per the report of the registry there is a delay

of 1536 days in filing the appeal. The appellants have also

filed an application seeking condonation of delay in filing

the appeal.

7. In the application it has been submitted that after receiving

the copy of the judgment passed by the Additional District

Judge Anantnag, the record was collected from the

subordinate office with a view to obtain legal advice from

the Department of Law, Justice and Parliamentary Affairs. It

has been further averred that due to outbreak of Covid-19

pandemic, the Government offices got adversely affected and

this caused delay in examining the matter. It was only on

12.04.2023, that the Law Department accorded sanction to

filing of an appeal against the judgment of learned District

Judge Anantnag. It has been further submitted that learned

Senior Counsel took up the matter with the appellants for

CM No.2047/2024 in RSA No.08/2024 3|P a g e providing relevant record so that appeal could be drafted and

filed before the Court. At the time of drafting the appeal it

was found that some of the annexures were illegible and the

matter was again taken up by learned senior counsel with the

appellants. On 30.11.2023 SSP Anantnag sought status

regarding filing of appeal from learned Sr.AAG in response

whereto learned Sr.AAG vide his communication dated

07.12.2023 intimated that the appeal in the matter could not

be filed before the Court due to illegible annexures and

therefore the appeal was returned to District Police Office in

the month of May, 2023 through dealing assistant for

providing illegible annexures, but the documents were not

received back in the office of Sr.AAG. It is further stated that

SSP Anantnag vide his communication dated 25.12.2023

informed that the file was not received back in his office.

Accordingly, an enquiry was initiated to fix the

responsibility of the concerned dealing assistant for not

returning the file back. Lastly, it has been stated that after

obtaining the certified copies/true copies of annexures from

the concerned Courts the appeal was prepared and filed

before the Court. On these grounds it has been submitted

that there was no intentional or willful delay in filing the

appeal.

CM No.2047/2024 in RSA No.08/2024 4|P a g e

8. Respondent/plaintiff has filed his reply to the application in

which it has been submitted that the assertions made by the

applicants in the application are absolutely false and

frivolous. It has been further submitted that intention of the

appellants is only to drag the poor respondent to litigation

with a view to deny him the fruits of litigation. It has been

further submitted that after passing of the judgment and

decree dated 02.04.2007, the appellants had appeared before

the executing court on 11.10.2021 through their counsel and

sought time to file objections to the execution petition. It has

been submitted that the appellants were aware about the

judgment and decree passed by the trial Court as upheld by

the 1st Appellate Court and now they cannot claim that delay

in filing the appeal is not deliberate.

9. I have heard learned counsel for the parties and perused the

record of the case.

10. Before coming to the facts of the case it would be

appropriate to discuss the legal position regarding

condonation of delay in filing the proceedings. Section 5 of

the Limitation Act vests jurisdiction with the Appellate

Court to entertain an appeal beyond the prescribed period of

limitation, if the appellant satisfies the Court that he had

sufficient cause for not preferring the appeal within the

CM No.2047/2024 in RSA No.08/2024 5|P a g e prescribed period of limitation. Thus, if an appellant

satisfies the Appellate Court that because of some sufficient

reason he was prevented from preferring the appeal within

prescribed period of limitation, the delay in filing the appeal

can be condoned by the Appellate Court. "Sufficient cause"

would mean circumstances beyond control of a party that

prevented such party from meeting the dead line. Courts

generally adopt a liberal approach while interpreting

"sufficient cause" to ensure that meritorious cases are not

barred by technicalities.

11. The Supreme Court has in the case of Pathapati Subba

Reddy (Dead) By LRs & Ors vs. The Special Deputy

Collector (LA), 2024 INSC 286 laid down principles

regarding the law of limitation and condonation of delay.

The same are enumerated as under:-

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same

CM No.2047/2024 in RSA No.08/2024 6|P a g e cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.

12. From the above analysis of the law it is clear that even

though liberal justice oriented approach has to be adopted

while considering a plea for condonation of delay, yet the

same cannot be used to defeat the law of limitation. Even

the merits of the case are not required to be considered in

condoning the delay.

13. Coming to the facts of the present case, it is clear from the

perusal of the record that the appellants have filed appeal

against the impugned order dated 02.11.2019 only on

15.04.2024. So even before the outbreak of Covid-19

Pandemic and coming into effect of the orders passed by the

Supreme Court in the case Re: Cognizance For Extension of

CM No.2047/2024 in RSA No.08/2024 7|P a g e Limitation, Suo Moto Writ Petition (Civil) No.3 of 2020, the

limitation period of 90 days for filing the appeal against the

impugned judgment passed by the 1st Appellate Court had

expired in first week of February, 2020 when Covid-19

pandemic had not set in. The appellants have not explained

as to why they could not file the appeal before passing of

orders by the Supreme Court in the aforesaid case whereby

the period from 15.03.2020 to 28.02.2022 was directed to be

excluded while computing the period of limitation for filing

suits, appeals etc. In the application filed by the applicants

there is no explanation given by the appellants as to why

appeal could not be filed before 15.03.2020.

14. Even if we exclude the period from 15.03.2020 to

28.02.2022 in terms of the directions issued by the Supreme

Court in the aforesaid suo moto writ petition, still then there

is nothing in the application to explain the delay in obtaining

the sanction from the Law Department. As per the case of

the appellants/applicants the sanction for filing the appeal

was accorded by the Law Department on 12.04.2023. The

effect of Covid-19 Pandemic had receded in the early part of

year 2022 itself but the appellants have failed to explain as to

in what circumstances they could not obtain the sanction of

the Law Department for filing the appeal until 12.04.2023.

CM No.2047/2024 in RSA No.08/2024 8|P a g e Thus, even if we accept the explanation given by the

appellants for not filing the appeal immediately after grant of

sanction by the law Department due to the reasons

mentioned in the application, still the appellants have

miserably failed to explain the delay in filing the appeal up

to 15.03.2020 and thereafter from 28.02.2022 to 12.04.2023.

Thus, it cannot be stated that the appellants/applicants were

prevented by sufficient cause from filing the appeal within

the prescribed period of limitation. Therefore, the

appellants/applicants have failed to carve out a case for

condoning the delay in filing the appeal.

15. The recklessness and negligence on part of

appellants/applicants is further reflected from the manner in

which they have dealt with the present case from the very

inception before the trial Court. The appellants filed their

written statement and thereafter stopped appearing in the

case. When the ex parte judgment and decree was passed by

the trial Court on 02.04.2007, they failed to take immediate

steps to assail the same and instead filed the appeal only on

08.07.2009. The 1st Appellate Court refused to condone the

delay as the explanation tendered by the appellants was

found unsatisfactory by the appellate Court. Thereafter

again the appellants failed to file the appeal before this Court

CM No.2047/2024 in RSA No.08/2024 9|P a g e within the prescribed period of limitation and they woke up

from deep slumber only after more than five years of passing

of order by the 1st Appellate Court. These circumstances

clearly indicate that there has been an absolute negligence

and indifference on the part of appellants in filing appeal

within the prescribed limitation right from the inception.

Therefore, discretion to condone the delay in filing the

appeal in favour of the appellants cannot be exercised by this

Court.

16. For the foregoing reasons, I do not find any merit in this

application. The same is dismissed and consequently the

appeal shall also stand dismissed.

(SANJAY DHAR) JUDGE

SRINAGAR 20.05.2025 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

CM No.2047/2024 in RSA No.08/2024 10 | P a g e

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