Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Others vs Abdul Rashid War on 4 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
CONC no. 130/2017
Date of order: 04.10.2018 State of J&K and others Vs. Abdul Rashid War Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge i. Whether to be approved for reporting In NET Yes/No ii. Whether to be approved for reporting In Digest/Journal Yes/No __________________________________________________________________ Appearing Counsel:
For Petitioner(s): Mr. B. A. Dar, Sr. AAG For Respondent(s): Mr. Madad Khan, Adv.
1. CIMA no. 51/2010 titled State and others versus Abdul Rashid War was dismissed for non-prosecution by an order dated 24.08.2015 of this court. The petitioners have moved an application for its restoration along with the instant application for condonation of delay in filing the same.
2. It is pleaded in the application for condonation of delay that the applicant/appellant no. 3 had no knowledge of the aforesaid order till such time that the learned District and Sessions Court while hearing the execution petition on 01.03.2017 directed the concerned treasury officer to submit a report in terms of the order dated 31.03.2010 CONC no. 130/2017 Page 1|8 whereby the concerned officer was ordered to deduct an amount of Rs.21,80,000 from the Director General Police's account head 2055-
P. It is submitted that immediately thereafter, without wasting any time, the applicant no. 3 took up the matter with the administrative department which issued administrative directions and sanction for filing the restoration application before this court.
3. It is further submitted that though the restoration application is within time, yet as an abundant caution, this application seeking the condonation of delay in filing the same has been moved. It is stated that the applicants had neither intentionally nor deliberately absented themselves on 24.08.2015 but were under a bona fide belief and impression that as and when the appeal is listed it will be duly conducted by the standing counsel representing them and in case the delay is not condoned it will cause a huge loss to the state exchequer inasmuch as the applicants/appellants have to satisfy the decree passed in ex-parte without touching the merits of the case.
4. In his objections, the non-applicant/respondent has stated that he was an employee (constable) in the department of respondent no. 3. He was appointed by the then Deputy Inspector General of Police, Kashmir range, vide an order dated 19.12.1968 and he was discharged from his services on 09.06.1970 by the Senior CONC no. 130/2017 Page 2|8 Superintendent of Police, Baramulla. Thereafter he filed a civil suit before the Hon'ble Court of Principal District and Sessions Judge, Srinagar, with the prayer for setting aside the impugned order dated 09-06-1970 passed by SSP Baramulla, and the Hon'ble Court allowed the Civil Suit by passing an ex-parte decree in his favour declaring the order dated 09-06-1970 passed by SSP Baramulla as void and ineffective with a further direction that he shall be entitled to all the benefits under law as an official of the police department appointed properly by the competent authority.
5. It is also submitted that the appellants/applicants have not pleaded any genuine cause/ground to warrant the condonation of delay except for the assertion that they have no knowledge about the order dated 24.08.2015 passed by the Hon'ble Court when a sizable number of government advocates represent them before the court. The appellants had full knowledge about the dismissal of the appeal but they have deliberately and intentionally concealed/suppressed the same and have not put forward the correct factual position in filing the application for the condonation of delay. In the end it has been urged that the application merits dismissal and it may be accordingly dismissed.
6. Heard and considered.
CONC no. 130/2017 Page 3|8
7. The order impugned in CIMA 51/2010 by virtue of which the services of the respondent herein have been dispensed with has been passed by the Superintendent of Police, Baramulla on 09-06-1970. On 09-09-1988, that is after a period of more than 18 years, the plaintiff - respondent herein filed a suit for declaring the said order as null and void. The Suit was decreed by the learned District Judge, Srinagar, in ex parte. The question simplicitor is whether such a decree could have been passed after such a long time in favour of the petitioner, who had maintained a discreet silence during the interregnum. Article 14 of the Limitation Act provides that in a suit to set aside any act or order of an officer of the government in his official capacity, not herein otherwise expressly provided for, the period of limitation shall be one year and the time from which the period begins to run is the date of the act or order. On the analogy of the Article 14 of the Limitation Act, the plaintiff had to file the suit within a period of one year from the date order of his dismissal i.e. 9.6.1970.
8. Delving over an identical issue in the case of Bogidhola Tea & Trading Co. Ltd. versus Hira Lal Somani, reported in (2007) 14 SCC 606, Hon'ble the apex Court of the country, vide its judgement dated December, 07, 2007 held as under:
CONC no. 130/2017 Page 4|8
11/ Ordinarily, we would not have interfered in such matter.
However, it appears to be a gross case. Appellants before us have been able to show that the ex-parte decree dated 19.4.1990 passed by the learned Additional District & Sessions Judge, Jorhat, ex- facie suffers from non-application of mind. Had the learned Judge applied its mind even to the averments made in the plaint, he should have asked himself the question as to whether in absence of any acknowledgment in writing, as a result whereof the period of limitation would start running afresh, the suit could have been decreed. Section 3 of the Limitation Act, 1963 mandates that a Court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. Although such a defence has not been raised, the statute obligated upon the Court of law to consider as to whether a suit is barred by limitation or not. In the event it was found that the suit was barred by limitation, the Court had no jurisdiction to pass a decree. It was, therefore, essential for the learned Trial Judge to pose unto itself the right question, particularly when without adduction of oral evidence the pleading raised in the plaint could not be said to have been established. It was, therefore, not a case where the Court could have invoked the provisions of Order 10 Rule 8 of the CPC. Even otherwise, the suit was set down for ex-parte hearing. The learned Trial Judge stated that only a prima-facie case was found out from the plaint and other documents which were not sufficient for passing a decree as therefor the plaintiff was bound to prove his case.
12/ For the reasons aforementioned, having regard to the peculiar facts and circumstances of this case, we think that it is a fit case where the High Court should have condoned the delay. We, therefore, set aside the judgment of the High Court. Ordinarily, we would have remitted the matter back to the High Court for consideration thereof on merit of the appeal, but as we CONC no. 130/2017 Page 5|8 have ourselves looked to the records of the case, we are of the opinion that interest of justice would be subserved if we set aside the ex-parte decree dated 19.4.1990. We direct accordingly."
9. Applying the ratio of the law laid down above to the facts of the instant case, the Court has not only to be circumspect but has also to exercise a great deal of caution while passing a decree in ex parte. The first question that the Court ought to have posed unto itself under the shade and cover of the pleadings of the plaintiff at the very inception of the suit was as to whether the suit was hit by the rigor of limitation and if so what shall be its consequences, which, on the face of it, would have been the dismissal of the suit. The trial Court entertained a recklessly time barred suit and decreed the same in favour of the plaintiff - respondent herein. The Court has the suo moto power and jurisdiction to enquire into the question of limitation and once the Court comes to the conclusion that the suit is time barred, the only option left with it is to dismiss the suit at the very threshold. Section 3 of the Limitation Act makes it mandatory that the Court cannot exercise its jurisdiction for grant of any relief in favour of a party if the same is found to be barred by limitation irrespective of the fact whether or not such a defense is raised. The Statute makes it obligatory upon the Court of law to consider as to whether the suit CONC no. 130/2017 Page 6|8 is barred by limitation and in any case where it is found that the suit is barred by limitation, the Court has no jurisdiction to pass a decree.
10. On the analogy of the law laid down above, the application seeking condonation of delay in filing the application for restoration of the appeal bearing CIMA No. 51/2010, which was dismissed in default on 24/08/2015, is allowed. Consequently, the restoration application is taken on board. Registry to diarize the same. The restoration application is allowed, as a corollary to which, the CIMA is taken up for hearing with the consensus of the learned counsel for the parties.
11.Risking repetition, it is reiterated here that the learned District Judge was obliged in law to look into the question of limitation suo moto, and to see whether he had, or he had not, the jurisdiction to try and determine the matter. The suit on the face of it was recklessly time barred and the learned District Judge, Srinagar, had no option but to dismiss the suit at its very threshold. It will be pertinent to add here that the argument of the learned counsel for the respondent that the Superintendent of Police (SP) had no authority to dismiss the plaintiff
- respondent, is an argument in despair. Rule 335 of the Jammu and Kashmir Police Rules, 1960, authorises the Superintendent of Police to dismiss from service a Head constable, Junior Grade and a Constable. Therefore, on the basis of the said rule, the SP has the CONC no. 130/2017 Page 7|8 power to dispense with the service of a Constable, which the respondent was at the time when the order of his dismissal was passed.
12.Viewed in the above context, the CIMA No. 51/2010 merits to be allowed and the impugned judgment and decree dated 3.1.1992 passed in ex parte in the civil suit titled Abdul Rashid War versus State and others is set aside along all other proceedings emanating therefrom.
( M. K. Hanjura ) Judge Srinagar 04.10.2018 N Ahmad CONC no. 130/2017 Page 8|8