Jammu & Kashmir High Court - Srinagar Bench
State Of J&K & Anr vs Vijay Kumar Alias Raj Krishen & Ors on 8 September, 2020
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 28.08.2020
Pronounced on:08.09.2020
CM No.4899/2019
in
RFA No.33/2019
CM No.4900/2019
State of J&K & anr.
... Applicant(s)/Appellant(s)
Through: - Ms. Asifa Padroo, AAG.
Vs.
Vijay Kumar alias Raj Krishen & Ors.
...Non-applicant(s)/Respondent(s)
Through: - Mr. Ateeb Kanth, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By this order application filed by the appellants for condonation of delay in filing the Civil First Appeal, against the order dated 24.03.2017 and exparte judgment and decree dated 27.06.2016 passed by learned Principal District Judge, Budgam, in civil suit titled Vijay Kumar Vs. State & Ors, is proposed to be disposed of.
2) A suit titled Vijay Kumar alias Jai Krishen Vs. State and others was filed by the plaintiff (respondent No.1 herein) before the Court of MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 2 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 Principal District Judge, Budgam. The relief prayed for in the suit is reproduced as under:
―a. A decree of declaration declaring the plaintiff lawful owner in possession of suit land falling under survey No.1927/726 measuring 1 kanal 2 marlas situated at village Chandoora District Budgam.
b. A mandatory injunction decree whereby the defendant be directed to pay the compensation as per the present market rate/value with respect to the suit land in favour of plaintiff along with rent since 1990 for user of the suit land.
OR In alternate the defendant forest department be directed to handover the possession of the suit land unto the plaintiff and pay the rentals for the user of the suit land since 1990 till date to the plaintiff.
c. After allowing part second of prayer ―b‖ a permanent injunction decree be passed in favour of plaintiff and against the defendants whereby the defendants be permanently restrained from causing any sort of interference into the suit land.
3) Applicants/appellants herein were impleaded as defendants No.1 and 6 to the said suit. The defendants failed to contest the suit and they were set exparte and the learned trial court proceeded to record exparte evidence of the plaintiff. After recording exparte evidence, the learned trial court vide its judgment and decree dated 27.06.2016, passed a decree in the following terms:MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 3 CM No.4899/2019
in RFA No.33/2019 CM No.4900/2019 ―In the light of the aforementioned discussion, the suit of the plaintiff is decreed and the decree mandatory injunction to the effect that defendants 1, 3 and 6 shall pay the compensation under law in respect of the suit land measuring 1 (one) kanal and 2 (two) marlas under survey number 1927/726 (old) and 218 (new) situated at Chadoora Budgam in favour of the rightful person/persons provided the same is found in the physical possession of their department upon being ascertained from the defendants 2, 4, 5 and 7, is passed in the case. However, no order is made as to the costs.‖
4) The aforesaid exparte judgment and decree was sought to be set aside by the appellants herein before the learned trial court by filing an application in this regard. Along with application for setting aside of the exparte judgment and decree, the appellants also filed an application for condonation of delay. The delay was condoned by the learned trial court vide its order dated 14.02.2017 and the main petition for setting aside of exparte judgment and decree dated 27.06.2016 was taken up for hearing.
The learned trial court after examining the record of the case did not find sufficient ground for setting aside of exparte judgment and decree and the petition of the appellants was dismissed. MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 4 CM No.4899/2019
in RFA No.33/2019 CM No.4900/2019 While doing so, the learned trial court made the following observations:
―In the circumstances as are available in this case, it is an apparent case of gross negligence on the part of the applicants in pursuing the case in this Court. There had absolutely been no negligence on the part of concerned standing counsel. Earlier engaged standing counsel was disengaged merely three days after his appearance in the suit proceedings. Thereafter, it was solely liability and obligation of the applicants to appear in the Court and to keep them inform for the proceedings in the suit or at the most it can be said that the newly engaged standing counsel could have ascertained the progress of case, after getting information from the department as to pendency of the suit in this Court. The applicants have slept over the matter for ten months and during this period evidence in exparte was produced by the applicant which lead to passing of exparte judgment. Therefore, all that has been projected in the application is incorrect and the fact of the matter remains that the applicants had remained grossly negligent in contesting the suit or to say the least the applicants have not MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 5 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 been diligent in appearing in the suit proceedings and in contesting the suit. In these circumstances, no sufficient cause is made out within the meaning of Order 9 rule 13 CPC enabling this court to set aside the exparte judgment and decree passed on 27.6.2016.‖
5) It is this order dated 24.03.2017, whereby application of the appellants for setting aside of exparte judgment and decree dated 27.06.2016 has been rejected, as also the aforesaid exparte judgment and decree of the learned trial court, which is under challenge by way of the instant appeal.
6) I have heard learned counsel for the parties and perused the record of the case.
7) The impugned order has been passed on 24.03.2017 whereas the instant appeal has been filed on 22.07.2017. An order rejecting an application for setting aside of exparte judgment and decree is appealable in terms of the provisions contained in Order 43 Rule 1(d) of the Code of Civil Procedure and the prescribed period of limitation is 90 days. Thus the appeal against the aforesaid order dated 24.03.2017 is delayed by more than two years. So far as impugned judgment and decree is concerned, the same has been passed on 27.06.2016. The limitation provided for filing an appeal against the MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 6 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 judgment and decree is 90 days. Thus the appeal is delayed by about three years.
8) Section 5 of the Limitation Act provides for extension of period of limitation in certain cases. The extension can be granted in terms of the said provision, if the applicant satisfies the Court that he had ―sufficient cause‖ for not preferring the appeal or making an application within the prescribed period of limitation.
9) The Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katji, reported in (1987) 2 SCC 107, while interpreting the expression ―sufficient cause‖ appearing in Section 5 of the Jammu & Kashmir Limitation Act, has laid down certain principles. The same are reproduced as under:
―303. The legislature has conferred the power to condone delay by enacting Section 5 [ 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.] of the India 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 MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 7 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 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.
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.
10) In Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur, reported in (1992) 2 SCC 598, the Supreme Court has indicated the real test to determine the delay is that the petitioner MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 8 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 should come to Court before a parallel right is created and that the lapse of time is not attributable to any latches or negligence.
11) The Supreme Court in the case of P. K. Ramachandran v. State of Kerala and another, reported in AIR 1998 SC 2276, observed as under:-
―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) It shall also be quite apposite to quote para 32 to 34 of the judgment rendered by the Supreme Court in the case of ―Balwant Singh (Dead) Vs. Jagdish Singh and others‖ reported in (2010) 8 SCC 685:
―32. It must be kept in mind that whenever a law is enacted by the legislature, it is MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 9 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.
33. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious.
Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 10 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 approach or interpretation would hardly be permissible in law.
34. Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay;
equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law.
[Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997].‖
13) In Postmaster General v. Living Media India Limited, (2012) 3 SCC 563, the Supreme Court had an occasion to discuss the principles governing Section 5 of the Limitation Act with reference to the Government departments. The Court observed as under:
――28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 11 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.‖
14) In latest judgment in University of Delhi v. Union of India, reported in 2019 SCC Online SC 1634, the Supreme Court, after taking note of the judgments referred by the parties before it, concluded as under:
―27......The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 12 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court.
28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 - DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up.
Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 13 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest.‖
15) In the light of aforesaid enunciation of law on the subject, the question that falls for determination is whether the delay of more than two years in filing the appeal against the impugned order can be condoned in the facts and circumstances of the case.
16) The appellants have submitted that the process of filing the appeal was delayed due to negligence of some officer/official of the appellant department for which the department will be conducting an enquiry for fixing the responsibility of the officer/official. It is further urged that for filing appeal, record was required to be collected from various subordinate offices and also to obtain legal advice from the department of Law, Justice and Parliamentary Affairs. The sanction was given by the Law Department in terms of letter No.LD(Lit)2019/20-Fst dated 02.07.2019 and immediately thereafter the instant appeal was filed.
17) From the aforesaid assertions of the appellants, it is evident that the only ground urged by them is that some unknown officer/official, who is yet to be identified, has been negligent in handling the case as a result of which there was delay in filing the appeal. No particulars in this regard have been given in the application and the assertions in this regard are as vague as it could be. MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 14 CM No.4899/2019
in RFA No.33/2019 CM No.4900/2019
18) It is true that in the matter of considering the application for condonation of delay, particularly of Government departments, a pedantic approach has not to be adopted and some latitude has to be given in view of existing beaurucratic hurdles in decision making but the same cannot be beyond proportions otherwise law of limitation would be rendered otiose. There is no quarrel with the proposition that the words ―sufficient cause‖ for condoning the delay have to be liberally construed so as to advance the cause of justice but it is equally correct that the said expression has not to be construed in a manner that may provide complete protection to an indolent litigant. The Court cannot mechanically accept the reasoning furnished by a Government department in its application for condonation of delay without insisting upon specific particulars with regard to explanation of the delay, that too when the delay is more than two years. There has to be a reasonable explanation for the delay on the part of a litigant even if it happens to be the government. The law of limitation has to be applied even if it may apply harshly provided complete indolence is attributable to the applicant.
19) In the instant case, it is clear that the explanation given by the appellants depicts casual approach on the part of officials/officers of the appellant department. In fact, negligence is writ large on the part of appellants in the manner they have approached this case right from its inception. In the first place, the appellants, after putting in appearance before the trial court stopped appearing in the case, as a MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 15 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 result whereof, they were set exparte and an exparte judgment and decree came to be passed against them. Thereafter they did not approach the trial court for setting aside of exparte judgment and decree within the prescribed period of limitation and they had to apply for condonation of delay, which luckily was accepted by the trial court and their application for setting aside exparte decree was considered on merits. Unfortunate for the appellants, they could not succeed in convincing the learned trial court to set aside the exparte judgment and decree. In spite of facing this situation in the learned trial court, the appellants did not learn any lesson and they continued with their casual approach towards the case. After a lapse of more than two years of passing of the impugned order by the learned trial court they woke up from the deep slumber and filed the instant application and appeal before this Court without proper explanation for filing the appeal after a delay of more than two years.
20) For what has been discussed hereinbefore, I do not find any reason, much less a sufficient reason, for condoning the delay in filing the appeal.
21) There is yet another aspect of the matter. The judgment and decree passed by the learned trial court is fairly innocuous in nature, inasmuch as the learned trial court has not given a finding with regard to the ownership of the land which was subject matter of the suit nor has it given a finding as to on how much land the plaintiff is in MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document 16 CM No.4899/2019 in RFA No.33/2019 CM No.4900/2019 occupation. The learned trial court has left all these issues to be determined by the concerned authorities of the Government by merely directing that the compensation be paid in favour of the rightful persons provided they are found in physical possession of the land in question after ascertaining the same from the defendants 2, 4, 5 and 7, who happen to be the government functionaries. So even if this judgment and decree is implemented in its present form, no public interest is going to be harmed because ultimately it is the functionaries of Government including the appellants who will have to determine as to who is the rightful person entitled to compensation and whether the plaintiff, respondent No.1 herein, is actually in possession of the land regarding which he is seeking compensation.
22) For all the aforesaid reasons, I do not find any merit in this application. The same is dismissed. As a necessary corollary, the appeal along with connected CM(s) is dismissed with no order as to costs.
(Sanjay Dhar) Judge Srinagar 08.09.2020 ―Bhat Altaf, PS‖ Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No MOHAMMAD ALTAF BHAT 2020.09.08 14:33 I attest to the accuracy and integrity of this document