Jammu & Kashmir High Court
State Of J And K And Anr. vs Gh. Nabi Bhat And Ors. on 19 March, 2003
Equivalent citations: 2003(3)JKJ305, AIR 2003 (NOC) 555 (J&K), 2003 A I H C 3137 (2003) 3 SCT 614, (2003) 3 SCT 614
JUDGMENT Y.P. Nargotra, J.
1. This is an application filed on behalf of State of Jammu & Kashmir through Chief Secretary and Commissioner Secretary, General Department, Jammu & Kashmir Government, who are respondents No. 1 and 2 in SWP No. 1707/2000 decided on 11.7.2000 for seeking condonation of delay of 16 days caused in filing Letters Patent Appeal against the said judgment. The cause due to which delay has occurred in filing the appeal has been shown in para 3 of the application as follows:-
"Thereafter the judgment impugned in the above referred appeal was decided by the Hon'ble Court, a copy of the judgment was applied for and the same was provided after one week by the registry to the standing counsel of the applicant. The same was forwarded to the appellant by the said counsel and the matter was considered at various levels. On 6.8.2002 it was decided to refer the matter to the standing counsel to get a draft of appeal prepared so that a final decision could be taken regarding filing of the appeal. The relevant record was sent to the counsel who drafted the appeal and returned the records with draft appeal on 31.8.2002. The matter was again considered and a final decision to file the appeal was taken on 13.9.2002. The draft appeal was sent to the counsel after approval. He required some documents which were to be annexed with the appeal the same were made available to him and the counsel there after prepared the paper book and filed the same."
2. We have heard Ld. Counsel for the parties and perused the record. Ld. Counsel for the respondents Mr. M.A. Qayoom has strenuously argued that appeal can only be filed by the person who is aggrieved of the judgment and only such person can either himself sign the memo of appea /and the application or he can authorise any other competent person to do so on his behalf. According to him, in the writ petition, the judgment which is sought to be appealed against, state through Chief Secretary and Commissioner Secretary General Department were respondents and therefore they alone can be said to be aggrieved persons. So according to him, the application as well as the power of attorney filed with the application appointing the counsel for prosecution of the application could only be signed by them. According to him in the present case, the application and the power of attorney appointing the counsel for prosecution of application has been signed by Under Secretary to Government General Department who is not legally competent to do so. In support he relies upon case reported in 1998 SLJ page 46 and 1998 SLJ page 50.
3. Mr. Hussain Ld. Counsel appearing for the applicants submitted that for considering the sufficiency of the cause shown for seeking condonation of delay, liberal approach should be adopted and a meritorious case should not be declined to be heard simply because there is some delay as reported in 2000 SLJ page 335. He further contended that Under Secretary is a competent person under law duly authorised on behalf of the state to make an appeal and sign the same on behalf of the State as well as to make and sign the application for condonation of delay. According to Ld. Counsel the State has empowered the Under Secretary in this behalf by issuance of SRO 413 dated 18th of August 1973, He relies in support on the case reported in 1974 KLJ page 745.
4. We have considered the respective contentions of the parties raised at the bar and are of the opinion that application seeking condonation of delay has been filed by the competent person for the following reasons:
State being not a real person, always acts through its officers provision in this regard has been made in order XXVII of the Code of Civil Procedure. It is beneficial to refer to Rules 1 and 2 of order XXVII in this behalf which are reproduced as under:
"1. Suits by or against Govt. In (the Government) the plaint or written statement shall be signed by such person as the Govt. may, by general or special order, appoint in this behalf and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.
2. Persons authorised to act for Government -- Persons being ex officio or otherwise to act for the Government in respect of any judicial proceedings shall be deemed to be the recognized agents by whom appearances, acts and applications under this code may be made or done or behalf of the Government."
5. From the bare perusal of these rules it is manifestly clear that Government can authorise any person to act on its behalf. Now it is to be seen whether Under Secretary of Administrative department was authorised to act on behalf of the Government. The Government of J&K has issued SRO 413 dated 18th of August 1973 which is as follows :-
"Notification SRO 413 dt. 18.8.73; "SRO-413:- For purposes of the provisions of Rules 1 and 2 of Order 27 and Section 2(7) of the Code of Civil Procedure, Svt. 1977, and in modification of paras 38 and 44 of the Revised Law Department Manual, 1935, the Government is pleased to make the following order:-
1. In suits by or against the Government, the plaint or written statement shall be signed by the Secretary/Head of the concerned Department and shall be verified by either of them or by any other gazetted officer of the Department who is acquainted with the facts of the case.
2. The Secretary Head of the concerned Department and the Secretary to Government Law Department are ex-officio authorised to act for the government in respect of all Judicial proceedings.
Explanation:- for purposes of paras 1 and 2 above secretary shall include the Additional Secretary, the Special Secretary, the Deputy Secretary and the Under Secretary.
3. The Secretary to Govt., Law Department, the Deputy Secretary and the Under Secretary in that Department shall be Government pleaders for the purposes of performing all the function of the Government Pleader under the Code of Civil Procedure within the meaning of Section 2(7) of the said code."
6. As the present case pertains to General Department, as such the Under Secretary to General Department in view of the explanation appended to SRO 413 can be deemed to have been authorised to act on behalf of the Government. So there is no lack of competence on the part of Under Secretary in signing the application and the appeal on behalf of the State and for appointing the counsel for prosecution of the same. Authorities relied upon by the Ld. Counsel for the non applicants are distinguishable and don't deal with the question like in hand.
7. So far as the sufficiency of cause shown for delay is concerned, we are of the view that it has been cogently explained and no inaction, negligence or callousness can be attributed to the applicants. For examining the sufficiency or otherwise of a cause shown a liberal approach needs to be applied because when cause of justice is pitted against technicalities the course which advances the cause of justice must be adopted. In the case State of J&K v. Gh. Rasool Rather, 2000 SLJ 335 a Division Bench of this court has held:
"It is clear from the above decisions of the Supreme Court that the expression "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see, that parties do not resort to deliberate tactics, but seek their remedy promptly. While considering a case for condonation of delay, the court must always remember that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not sufficient to run down his plea and shut the door against him. If the explanation does not smack of malafides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. The discretion exercised in the matter of condonation of delay should be proper and judicious."
As such delay caused in filing the appeal is hereby condoned. The application is accordingly disposed of.