Jammu & Kashmir High Court
Lt. Colonel Ashok Singh And Anr. vs Beant Singh And Sons on 8 May, 1997
Equivalent citations: AIR1997J&K119, AIR 1997 JAMMU AND KASHMIR 119
Author: R.C. Gandhi
Bench: R.C. Gandhi
JUDGMENT Gandhi, J.
1. This application under Section 5 of the Limitation Act has been presented seeking condonation of delay of 445 days in preferring the appeal under Section 39 of the Arbitration Act, 2002 (1945 AD).
2. The judgment under appeal was delivered on 22-8-1994 in Arbi ation Petition No. 180/1981 and the petitioners-appellants applied for obtaining copy of the judgment on 26-10-1995. The appeal has been presented along with an application under Section 5 of the Limitation Act, on 10-11-1995. The appellants in the memo of the application seeking condonation of delay have stated that immediately upon knowledge of the judgment and decree under appeal, the acted with due diligence and spared no effort in presenting the statutory appeal The filing of the appeal required to seek legal opinion from the L.A. (Defence) Government of India, with the result the appeal could not be filed within the period prescribed by the law of limitation.
3. The respondent has filed the objections opposing the application for condonation of delay and has sought dismissal of appeal on the ground that the appellants, who are not diligent in preferring the appeal, also have not shown any sufficient cause satisfying the Court to condone the delay. Respondent has also contended that the appellant Lt. Col. Ashok Singh was neither a party in the arbitration proceedings nor he has been authorised by the Union of India to prefer an appeal so much so the learned counsel appearing for the appellants, Mr. R. A, Jan, has not been engaged by the appellant No. 2, Union of India, authorising him to present the appeal of the appellants, There is also no power of attorney signed by Union of India in favour of the learned counsel authorising him to make submissions before the Court.
4. We have heard the learned counsel for the parties and perused the grounds taken in the application and objections thereto filed by the respondent.
5. While dealing with the contention of the learned counsel for the appellants seeking condonation of delay, it is seen from the record that no such evidence has been placed on the record specifically pointing out that on which date the appellants came to know about the judgment under appeal has thereafter when and what steps were taken to seek -legal advice, facilitating presentation of the appeal. The memorandum of application nowhere contains such averment leading to the satisfaction of the Court that the appellants have taken some steps. There is no such evidence also appended with the memorandum of appeal justifying and making out a case for sufficient cause which prevented the appellants in presenting the appeal. The only ground taken by the appellants in the application is that immediately after knowing about the passing of judgment and decree under appeal, they acted with due diligence and spared no effort in preferring the appeal. This averment and the contention of the learned counsel for the appellants is not supported by any evidence on the record and such a bald averment cannot be the substitute to the evidence when it has been rebutted and denied by the other side.
6. The learned counsel for the appellants has also submitted that the Courts must have liberal approach while dealing with the matters where the public interest is involved. There is no doubt that there is substance in the argument of the learned counsel, but the appellants must have placed on the record upon which the Court must justify that the appellants have taken steps to protect the public interest and while doing so if delay is caused, Court must certainly interfere and take a liberal view but in absence of such an evidence/where the appellants have not taken trouble to place before the Court any material for justifying and making out a sufficient cause for delayed presentation of the appeal, the Courts, merely on the argument of the learned counsel, cannot interfere and justify the order condoning the delay. Therefore, such a contention of the learned counsel is not acceptable. It also appears that while challenging the order under appeal, appellants were not serious and have come to the Court halfheartedly and perhaps have either withheld the evidence or opted not to place before the Court for seeking the condonation of delay. Therefore, the application deserves to be rejected.
7. Dealing with the submission of the learned counsel for the respondent that the appellant/applicant No. I was neither a party in the arbitration proceedings nor he has been authorised to present the appeal and also the learned counsel for the appellants has not been authorised by the Union of India to represent the appellants before the Court, we have seen the pleadings and the record of the appeal file and the Arbitration proceedings. It is seen therefrom that the appellant No. 1 was not a party either before the Court or arbitrator and the arbitration proceedings were filed against the Chief Engineer, North Kashmir zone, representing Union of India. Neither the party in the proceedings nor the Union of India has come forward in the appeal. There is also no power of attorney signed by the Union of India in favour of the learned counsel for the appellants on record. Under O. 6, R. 14 of C.P.C., it is required that the pleadings shall be signed by the party or his pleader (if any); and where the party is unable to sign the pleading by reason of absence or for other good cause, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. Further order 27, Rules 1 and 2 deal with the suits by or against Government and persons authorised to act for Government. Rules 1 and 2 read thus:
"1. Suits by or against Government.-- In any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government 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 authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government."
8. The Order XLI, Rule 1 mandates that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader.
9. From the perusal of the record of the file it is further seen that there is no authorisation of the Union of India either in favour of the appellant No. 1 for filing appeal or the learned counsel for representing the appellants including Union of India. The mandatory requirement of law contained in Order 6, Rules 14; O, XXVII, Rules 1 and 2 and Order XLI, Rule 1 of C.P.C. have not been complied with and thus the appeal suffers from such a legal defect. However, on 5th of August, 1996, when the objection to this effect was taken by the respondent, Mr. Jan, learned counsel for the appellants had sought time to meet the contention and to show authorisation of Union of India for presenting the appeal and authorising him to represent appellants before the Court. He has produced a copy of the Part I, Order Sr. No. 47 dated 23-9-1995 issued by the Col. K. K. Singhal, Commander HQ 133 Works Engineers, c/o 56 APO, which reads thus:
" DELEGATION OF POWERS
1. During the part of annual leave of IC-27030 F Col. K. K. Singhal, Commander of HQ 133 Works Engineers with effect from 1st Oct., 1995, IC-31051P Lt. Col. Ashok Singh, DOWE E/M will officiate as Commander HQ 133 Works Engineers. He will exercise all financial powers vested to undersigned under table 'B' of MES regulations.
2. Specimen signatures of IC-31051P Lt. Col. Ashok Singh, DOE E/M are appended below:--
3. These powers will automatically cease to be operative when the undersigned rejoins."
10. This delegation of powers deals with the exercise of all financial powers vested in some Officer and have no relevance with the presentation of the appeal or authorising the learned counsel for representing the appellants before the Court. However, these were curable defects which could have been cured and rectified subject to the legal consequences but the appellants have not taken any steps in that direction. The learned counsel could not show any other evidence in support of his contention to meet the objection raised by the other side. Hence the appeal is found legally defective and not maintainable.
11. For the foregoing reasons the application seeking condonation of delay is rejected. Consequently the appeal is also dismissed.