Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yaqoob Mir vs State Of J&K And Ors on 3 November, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 19
After Notice Matters
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
CM No. 5877/2020
In OWP No.1509/2013.
Mohammad Yaqoob Mir .....Petitioner(s)
Through: Ms Saima Mehboob, Adv.
V/s
State of J&K and Ors.. ..... Respondent(s)
Through: Mr. Hilal Ahmad Wani, Adv.
.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
ORDER
03.11.2021
1. Condonation of delay in filing restoration application of the writ petition is being sought by the applicant herein through the medium of instant application.
2. Before adverting to the grounds and explanation offered in the application a brief background of the case as stated therein would reveal that the petitioner herein had filed OWP No. 1509/2013 before this Court and engaged a counsel for pursuing the same. The said petition is stated to be dismissed for non-prosecution on 18-11-2014.
3. It is being stated that upon engaging the counsel initially for pursuing the case, the petitioner had been informed by the said counsel that he need not to appear on each and every date and that the counsel would prosecute the case of his own.
4. It is being further stated that under the said bona fide impression that the counsel would prosecute the case on his own, the petitioner did not appear in the matter personally.
5. It is being stated that in order to know the position of the subject matter of the writ petition from the clerk of the counsel concerned, the petitioner came to know on 23rd of October 2010, that the writ petition has been dismissed for non-prosecution on 18.11.2014.
6. The petitioner states to have immediately applied for a copy of the order and same is stated to have been furnished to him on 27.10.2020. It is being stated that in the meantime during the said period, the petitioner learnt that the counsel engaged by him namely Mr. Mir Suhail, Advocate had in fact taken up Government assignment and as such, had not appeared in the matter on behalf of the petitioner resulting into dismissal of the care.
7. It is being further stated that the said counsel did not intimate and inform the petitioner about his engagement as a Government counsel as also about the status of the case.
8. It is being stated that after obtaining certified copy of the dismissal order, the petitioner engaged a new counsel and got the instant application prepared and filed. It is being further stated that the petitioner has not been at fault in not pursuing the case but it is for the aforesaid reason that he could not pursue the matter.
9. It is being further stated that the petitioner could not file the instant application earlier on account of outbreak of COVID-19 Pandemic.
10. To sum up, the fundamental grounds/explanation offered seeking condonation of delay in the instant application by the petitioner is negligence of the counsel engaged by the petitioner.
11. Objections have been filed by the respondent No. 5 only. Other respondents have not chosen to file any objections.
12. Respondent No. 5 in the objections opposes the application on the premise that the application is not maintainable inasmuch as the applicant has not given sufficient cause for condoning the delay in filing restoration application. It is being further stated that sufficient cause presupposes that there is no negligence or inaction on the part of applicant and that in the instant case the applicant has been negligent for more than six years, therefore, delay occasioned in the matter does not deserve to be condoned.
13. Heard learned counsel for the parties and perused the record.
14. Perusal of the record tends to show that the writ petition filed by the petitioner at the time of its dismissal has been at infancy stage and none of the respondents including respondent No. 5 had filed any reply to the writ petition, so much so the position of engagement of the counsel of the petitioner as a Government counsel is being conceded by the counsel for the respondent No. 5.
15. In such peculiar facts and circumstances as to whether the delay occasioned to the matter can be condoned or not, a reference to the celebrated judgment of the Apex Court passed in Collector (LA) vs. Katiji reported in (1987) 2 SCC107 would be relevant and germane. Paragraph 3 of the said judgment provides as under: -
"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.
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."
16. Having regard to above position laid down by the Apex Court in the judgment supra, the instant application deserves to be allowed.
17. Thus what has been observed and considered hereinabove, the instant application is allowed subject to the payment of costs of Rs. 2000/- to be payable by the applicant to the respondent No. 5 within two weeks time.
18. It goes without saying that the judgment referred to by the learned counsel for the respondent No. 5 reported in (2012) 3 SCC 563 and 2010 (2) Supreme 115 in essence endorses and authenticates the principle of law laid down in Collector (LA) vs. Katiji supra. The judgments referred to by the learned counsel for the respondents, as such, do not lend any support to the case of the respondents.
19. Disposed of.
20. Registry to diarize and register the application for restoration of the writ petition and list the same after three weeks, i.e., on 7th December, 2021.
(Javed Iqbal Wani) Judge SRINAGAR 03.11.2021 "Junaid &Arif"