Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; vs Mohammad Yaqoob Baba And Others on 12 April, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
COD No.1371/2015
MP No.01/2017
MP No.01/2016 Date of Order:12.04.2017
State of J&K Vs. Mohammad Yaqoob Baba &
ors.
Coram:
Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing Counsel:
For the petitioner(s): M/S: Fayaz Ahmad Mir, Dy. AG & S. A.
Naqashbandi, AAG.
For the respondent(s): Mr. Mufti Mehraj-ud-din.
i) Whether approved for reporting
in Journal/Digest: YES
ii) Whether approved for reporting
in Media/Press: OPTIONAL
1) Delay of 02 years and 213 days in filing Civil 2nd
Appeal is sought to be condoned on the grounds enumerated in the instant application. Objections stand filed by respondent No.1.
2) Learned counsel for the petitioner submitted that the delay is neither deliberate nor petitioner had to derive any benefit by delaying filing of the appeal. With all bona fides papers were processed at various levels, but in the process delay occurred. When the State is aggrieved party, then certain norms and procedures have to be adhered to for accord of sanction to file appeal, in such a situation, State and the individual party is not on equal pedestal. 2 The expression "sufficient cause" employed in Section 5 of the Limitation Act, has to be liberally construed so as to advance the cause of justice.
3) Learned counsel for the respondent No.1 submitted that:
(a) The respondent No.1 who has been working as a "Daily Wager" is being deprived of reaping the fruits of the decree passed by the trial court dated 31.12.2006 and affirmed in civil 1st appeal on 29.12.2012;
(b) Frivolous ground has been projected in the application for condonation of delay which, by no stretch of imagination, would constitute "sufficient cause". Total indolence has been exhibited by the petitioner;
(c) The expression "sufficient cause" cannot be construed in a manner, which will result in miscarriage of justice;
(d) Respondent No.1, a poor daily wager, has been dragged for years together un-necessarily for none of his fault; and, 3
(e) No plausible ground whatsoever is projected in the application which would constitute "sufficient cause" for condoning the delay.
4) It is trite that the expression "sufficient cause" as employed in Section 5 of the Limitation Act has to be construed liberally so as to promote substantial justice. When substantial justice and technical justice are pitted against each other, then former has to be preferred. The "sufficient cause" has to be viewed and construed in the background of particular facts and circumstances of each case.
5) Precise flashback of the facts and circumstances of the instant case shall be advantageous for proper disposal of this application:
i) Respondent No.1, a "Daily wager(gardener), engaged in the year 1981 in the department of Floriculture, has claimed regularization in terms of the Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules, 1994, notified vide SRO 64 dated 24th March, 1994. When his regularization case was not considered, he 4 instituted a suit titled "Mohammad Yaqoob Baba Vs. State of J&K & ors", which was decreed by the trial court (2nd Civil Subordinate Judge, Srinagar) on 31st December, 2006. Civil 1st Appeal was filed on
02.08.2008 which has been dismissed by the 1st Appellate court (3rd Additional District Judge, Srinagar) vide judgment and decree dated 29.12.2012.
ii) Aggrieved thereof, after a gap of 02 years and 213 days, Civil 2nd Appeal is proposed to be filed. For condoning the delay, in the instant application, the ground projected as "sufficient cause" is reflected in para 2, wherein it is pleaded that after getting the judgment and decree dated 29.12.2012, the file was sent to Civil Secretariat for advice/instructions, which got misplaced at the time of floods. In this way, delay of 02 years and 07 months excluding the time for obtaining certified copy of the judgment and decree, has occurred.
iii) Director, Floriculture, vide his No.DFK/Adm/1324-25 dated 10.06.2015, has sent a communication to the Civil Secretariat relating to the status of the case as he was directed by the executing court to appear 5 before it on 18.06.2015. In response file was returned by the Law Department for filing of Civil 2nd Appeal with sanction order No.LD (Lit) 2012/163-Agri dated 01.09.2015.
iv) It appears that the appellant and respondents No.2 to 5 were alarmed only when in execution petition filed by the decree holder personal appearance of Director, Gardens and Parks was ordered. To come out of huge delay, a baseless averment, as referred to above, has been made in the application, which position is exposed by other averments of the application also
v) The 1st appellate judgment and decree is dated 29.12.2012. The devastative floods in the Kashmir Valley had occurred in the month of September, 2014 and its impact remained up to December, 2014. There is no explanation forthcoming as to why the authorities have slept over the matter from 29th December, 2012 till September, 2014, i.e. for a period of one year and eight months. Then again for the period from 1st January, 2015 till filing of this application on 29.10.2015, no plausible explanation is forthcoming. When such 6 type of indolence is solely attributable to the seeker of condonation, how delay can be condoned, that too in absence of "sufficient cause".
6) It is trite that when State is an applicant, there are inherent difficulties due to the fact of red-tapism, mode and methodology in filing the appeals etc. but for that also there has to be some limit for giving liberal construction to the expression "sufficient cause". When delay is beyond proportions, for construing expression "sufficient cause" beyond limit, shall be unwarranted. The liberal approach in construing expression "sufficient cause" can't be in a manner so as to acknowledge the total indolent approach of the seeker of condonation to the disadvantage and injustice to decree holder and in case, for the stated facts, such liberal approach is adopted, then the very object of the Limitation Act will be defeated.
7) Having a glance over the facts and circumstances of the instant case coupled with the scope of civil 2nd appeal, it shall be a travesty of justice to allow an indolent seeker of condonation a premium to drag a decree holder indefinitely.
7
8) The position of respondent No.1 (decree holder) having been engaged as a "Daily Wager" and the position of his having completed seven years as such on 01.04.1994 is reflected in order No.188- TSM (GPF) of 1994 dated 23.12.1994, issued by the Govt. of Jammu and Kashmir, Tourism, Gardens, Parks and Floriculture, where-under sanction has been accorded for creation 497 posts of Gardeners for regularization of daily rated workers of Parks and Gardens who have completed seven years of service as on 01.04.1994.
9) Regularization had been ordered in favour of 493.
The respondent No.1, who was figuring at serial No.20 in the list of 295 daily wagers of Kashmir Division, was not regularized which gave cause to him for filing the suit.
10) The suit after due contest has been decreed in favour of the plaintiff (respondent No.1 herein). The trial court vide judgment and decree dated 31.12.2006 has declared that the plaintiff (respondent No.1 herein) be regularized as per Order No.188-TSM(GPF) of 1994 notionally w.e.f. 01.04.1994. The said judgment and decree has been 8 upheld by the 1st appellate court where civil 1st appeal remained pending for four years.
11) The learned first appellate court has threadbare appreciated and discussed findings on all the issues and thereafter has upheld the judgment of the trial court.
12) On a cursory look, in the given facts and circumstances, by condoning delay, which is uncondonable in view of the total indolence shown by the seeker, even otherwise there can be no merit in the civil 2nd appeal. The respondent No.1, a daily wager, having been working on daily wages right from the year 1981, cannot be deprived of regularization. Suit has been decreed in his favour in the year 2006 and first appellate court has also upheld the judgment in the year 2012. Such a person cannot be allowed to be dragged indefinitely in the litigative process.
13) Applying the law as has been laid down by the Hon'ble Apex Court in the judgment rendered in the case of "State of Haryana Vs. Chandra Mani and others" (AIR 1996 SC 1623), the delay is 9 uncondonable. In the reported judgment, there was a delay of 109 days in filing Letters Patent Appeal which was condoned in view of its own facts whereas in the instant case, there is delay of 02 years and 213 days and factual position is diferent. In the reported judgment, it is amply clear that the principle is that the "sufficient cause" for condonation of delay is dependent upon facts and circumstances of the particular case. It is also settled that the expression "sufficient cause" has to be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. It is also settled that the Court has to be liberal in condoning the delay unless the case is hopelessly without merit. Para 10 of the judgment is relevant to be quoted:
"10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies 10 proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.
[Emphasis added]
14) Applying the law as laid down by the Hon'ble Apex Court to the facts and circumstances of the present case, the application has to be rejected on two counts:
First, that there is no plausible cause at all, as referred to above, for condoning the delay, and, 11 Second, that the respondent No.1, a daily wager, who has been declared entitled to regularization as per law, has a merit, so any further dragging will amount to miscarriage of justice.
15) The law of limitation has to be applied harshly where it appears that the seeker of condonation has exhibited total indolence and no fault is attributable to the opposer. In this view I am also fortified by the law laid down by the Hon'ble Apex Court in the case of P. K. Ramachandran v. State of Kerala and another, reported in AIR 1998 SC 2276. Para 6 is relevant to be quoted:
"6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."12
16) Viewed thus, the application being bereft of any merit only deserves dismissal with costs, as such, is dismissed along with connected MPs, costs quantified at Rs.10,000 (rupees ten thousand) payable to the respondent No.1 by the petitioner.
(Mohammad Yaqoob Mir) Judge Srinagar 12.04.2017 "Bhat Altaf"