Uttarakhand High Court
Anil Kumar And Others ........... ... vs State Of Uttarakhand And Others on 4 October, 2021
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Delay Condonation Application (IA) No.3074 of 2021
Restoration Application (MCC) No.3073 of 2021
In
Writ Petition (S/S) No. 394 of 2008
Anil Kumar and others ........... Petitioners
Vs.
State of Uttarakhand and others .......... Respondents
Present : Mr. Mohinder Singh Bisht, Advocate for the petitioners.
Mr. P.C. Bisht, Additional Chief Standing Counsel for the
State/respondents.
Hon'ble Ravindra Maithani, J. (Oral)
In the instant petition, the petitioners have sought quashing of a communication dated 19.12.2007, by which, a scheme for selection of the Head Constable, by promotion was published. All the petitioners claimed that they are Constables and were entitled for promotion. The petition was listed for hearing on 13.07.2017, when none appears on behalf of the petitioners, the petition was dismissed.
2. Now, delay condonation application along with restoration application have been filed by the petitioners. The grounds for delay, as stated in the application, are hereunder:-
2
(i) On the date of hearing, the counsel appearing for the petitioner was arguing in some other Court, due to which, he could not reach the Court on time.
(ii) The petitioner, who was doing pairavi of the case did not intimate the other petitioners with regard to the dismissal of the writ petition.
(iii) The dismissal of writ petition came to the notice of the petitioner no.1, only when he checked the status of the case on the website of the Court.
(iv) The petitioner no.1, due to some unavoidable and family problem could not contact his earlier counsel and, therefore, delay occurred.
(v) The petitioner no.1, due to exigency of service, posted at different parts of the State, therefore, he could not get sufficient time to contact his lawyer.
(vi) From March, 2020 onwards, due to Covid-19 pandemic, the petitioner no.1 could not approach the Court.
3. It is stated that the delay is not intentionally.
4. Heard learned counsel for the parties and perused the record.
3
5. Learned counsel for the petitioners would submit that the earlier counsel did not inform the petitioners about the dismissal of the case. Pairavi was being done by some other person, who did not inform the petitioners.
6. Learned State counsel would submit that there is a delay of 1490 days, for which, no sufficient cause has been shown.
7. The basic rule of condonation of delay is that generally the delay should be condoned and the matter should be decided on merits. But, then it is not an absolute right of the litigant to get the delay condoned on whatsoever grounds. It is also well settled law that a pedantic approach should not be adopted in such matters and each day's delay is not expected to be explained by the litigants. But then, there should be something which may give some reasons for not approaching the Court on time.
8. The grounds as mentioned in the delay condonation application are much vague. Who was doing pairavi, if not petitioner no.1? Was it petitioner number 2, 3, 4, 5 or 6? Nothing was explained. When did the petitioner no.1 checked the status on the website? No date 4 is given. When did the petitioner no.1 approach his lawyer? It is also not explained.
9. In the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, (1987) 2 SCC, 107, the Hon'ble Supreme Court discussed the concept of delay in approaching the Court and in para no.3 of his judgment observed as hereunder:-
"3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian 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 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.
1. 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.5
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. These principles have been referred and followed in subsequent judgments.
11. In the case of University of Delhi vs. Union of India and others, (2020) 13 SCC 745, the Hon'ble Supreme Court observed, "...while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the courts based on the fact situation...".
12. It is not that on 13.07.2017 alone, the petitioners were not represented. Instant writ petition was first taken up on 02.06.2008. Counter affidavit was filed on 14.08.2008. On the date of hearing on 16.03.2017, none was present for the petitioner and the Court adjourned on that date. Thereafter, again on 29.05.2017, none represented the petitioners, even in the revised call 6 as noted in the note-sheet. The next date fixed was 13.07.2017. On 13.07.2017, in absence of the petitioners, the writ petition has been dismissed. It is not one day's absence for the petitioners, but, repeatedly, as indicated hereinabove, the petitioners never approached the Court. There is no cause for the delay. Therefore, this Court is of the view that allowing such delay condonation application would be nothing, but, gross abuse of the process of the law. It would be not rendering justice, but, defeating the basic purpose of justice. The delay condonation application and consequently, the restoration application deserve to be dismissed.
13. The delay condonation application and the restoration application are dismissed.
(Ravindra Maithani, J.) 04.10.2021 Sanjay