Uttarakhand High Court
Anil Kumar And Others ........... ... vs State Of Uttarakhand And Others on 4 October, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Delay Condonation Application (IA) No.3074 of 2021
Restoration Application (MCC) No.3073 of 2021
In
Writ Petition (S/S) No. 394 of 2008
Anil Kumar and others ........... Petitioners
Vs.
State of Uttarakhand and others .......... Respondents
Present : Mr. Mohinder Singh Bisht, Advocate for the petitioners.
Mr. P.C. Bisht, Additional Chief Standing Counsel for the
State/respondents.
Hon'ble Ravindra Maithani, J. (Oral)
In the instant petition, the petitioners have
sought quashing of a communication dated 19.12.2007,
by which, a scheme for selection of the Head Constable,
by promotion was published. All the petitioners claimed
that they are Constables and were entitled for promotion.
The petition was listed for hearing on 13.07.2017, when
none appears on behalf of the petitioners, the petition was
dismissed.
2. Now, delay condonation application along with
restoration application have been filed by the petitioners.
The grounds for delay, as stated in the application, are
hereunder:-
(i) On the date of hearing, the counsel appearing
for the petitioner was arguing in some other
Court, due to which, he could not reach the
Court on time.
(ii) The petitioner, who was doing pairavi of the
case did not intimate the other petitioners with
regard to the dismissal of the writ petition.
(iii) The dismissal of writ petition came to the notice
of the petitioner no.1, only when he checked the
status of the case on the website of the Court.
(iv) The petitioner no.1, due to some unavoidable
and family problem could not contact his earlier
counsel and, therefore, delay occurred.
(v) The petitioner no.1, due to exigency of service,
posted at different parts of the State, therefore,
he could not get sufficient time to contact his
lawyer.
(vi) From March, 2020 onwards, due to Covid-19
pandemic, the petitioner no.1 could not
approach the Court.
3. It is stated that the delay is not intentionally.
4. Heard learned counsel for the parties and
perused the record.
5. Learned counsel for the petitioners would
submit that the earlier counsel did not inform the
petitioners about the dismissal of the case. Pairavi was
being done by some other person, who did not inform the
petitioners.
6. Learned State counsel would submit that there
is a delay of 1490 days, for which, no sufficient cause has
been shown.
7. The basic rule of condonation of delay is that
generally the delay should be condoned and the matter
should be decided on merits. But, then it is not an
absolute right of the litigant to get the delay condoned on
whatsoever grounds. It is also well settled law that a
pedantic approach should not be adopted in such matters
and each day's delay is not expected to be explained by
the litigants. But then, there should be something which
may give some reasons for not approaching the Court on
time.
8. The grounds as mentioned in the delay
condonation application are much vague. Who was doing
pairavi, if not petitioner no.1? Was it petitioner number 2,
3, 4, 5 or 6? Nothing was explained. When did the
petitioner no.1 checked the status on the website? No date
is given. When did the petitioner no.1 approach his
lawyer? It is also not explained.
9. In the case of Collector, Land Acquisition,
Anantnag and another vs. Mst. Katiji and others, (1987) 2
SCC, 107, the Hon'ble Supreme Court discussed the
concept of delay in approaching the Court and in para
no.3 of his judgment observed as hereunder:-
"3. The legislature has conferred the power to condone
delay by enacting Section 51 of the Indian Limitation
Act of 1963 in order to enable the courts to do
substantial justice to parties by disposing of matters on
"merits". The expression "sufficient cause" employed by
the legislature is adequately elastic to enable the courts
to apply the law in a meaningful manner which
subserves the ends of justice -- that being the life-
purpose for the existence of the institution of courts. It
is common knowledge that this Court has been making
a justifiably liberal approach in matters instituted in
this Court. But the message does not appear to have
percolated down to all the other courts in the hierarchy.
And such a liberal approach is adopted on principle as
it is realized that:
"1. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest
that can happen is that a cause would be decided
on merits after hearing the parties.
3. "Every day's delay must be explained" does not
mean that a pedantic approach should be made.
Why not every hour's delay, every second's delay?
The doctrine must be applied in a rational
common sense pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to have
vested right in injustice being done because of a
non-deliberate delay.
1. Any appeal or any application, other than an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if
the appellant or the applicant satisfies the court that he had sufficient cause for not preferring
the appeal or making the application within such period.
5. There is no presumption that delay is
occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant
does not stand to benefit by resorting to delay. In
fact he runs a serious risk.
6. It must be grasped that judiciary is respected
not on account of its power to legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so.
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10. These principles have been referred and
followed in subsequent judgments.
11. In the case of University of Delhi vs. Union of
India and others, (2020) 13 SCC 745, the Hon'ble
Supreme Court observed, "...while considering
condonation of delay, the routine explanation would
not be enough but it should be in the nature of
indicating "sufficient cause" to justify the delay which
will depend on the backdrop of each case and will have
to be weighed carefully by the courts based on the fact
situation...".
12. It is not that on 13.07.2017 alone, the
petitioners were not represented. Instant writ petition was
first taken up on 02.06.2008. Counter affidavit was filed
on 14.08.2008. On the date of hearing on 16.03.2017,
none was present for the petitioner and the Court
adjourned on that date. Thereafter, again on 29.05.2017,
none represented the petitioners, even in the revised call
as noted in the note-sheet. The next date fixed was
13.07.2017. On 13.07.2017, in absence of the petitioners,
the writ petition has been dismissed. It is not one day's
absence for the petitioners, but, repeatedly, as indicated
hereinabove, the petitioners never approached the Court.
There is no cause for the delay. Therefore, this Court is of
the view that allowing such delay condonation application
would be nothing, but, gross abuse of the process of the
law. It would be not rendering justice, but, defeating the
basic purpose of justice. The delay condonation
application and consequently, the restoration application
deserve to be dismissed.
13. The delay condonation application and the
restoration application are dismissed.
(Ravindra Maithani, J.)
04.10.2021
Sanjay
