Jammu & Kashmir High Court
Conservator Of Forests vs Khajur Singh And Ors. on 15 March, 1994
Equivalent citations: AIR 1994 JAMMU AND KASHMIR 70
Author: Chief Justice
Bench: Chief Justice
JUDGMENT S.C. Mathur, C.J.
1. This application is for condonation of delay in filing CMP No. 23/1993 for readmission of Letters Patent appeal dismissed in default of applicant's appearance. The application purports to be under Section 5 of the Limitation Act. The application has arisen in the circumstances hereinafter stated:
2. 404 Chill scants belonging to Smt. Kailash Devi were seized at the instance of Forest authorities. Kailash Devi was aggrieved by this seizure. She accordingly filed writ petition No. 792/1986 in this court. Her plea was that the trees had been felled after obtaining permission from the competent authority and therefore the seizure of scants was illegal.
3. The aforesaid writ petition was contested by the applicant who asserted that permission had been granted to fell 58 trees only against which Smt. Kailash Devi felled 88 trees.
4. Learned single Judge upholding the plea of Kailash Devi and holding the seizure as illegal commanded the Forest Department to return 404 Chill scants to her and in the alternative pay her price thereof at the prevailing departmental rates.
5. Against the aforesaid judgment of the learned single-Judge letters patent appeal was filed by the applicant through Shri D. S. Parihar Advocate. During the pendency of the appeal Smt. Kailash Devi died and on application made by the non-applicants they were brought on record as her legal representatives. The application bringing the non-applicants on record was allowed on 13-11-1992. The memo of appeal was amended so as to bring the non-applicants on record. However, the date on which the memorandum of appeal was actually amended is not clear. The appeal was listed for hearing on 9-3-1993 when it was dismissed in default of appearance on behalf of the applicants. On 11-3-1993 the applicants applied for certified copy of the order dated 9-3-1993. The certified copy was issued on 18-3-1993. On 7-4-1993. CMP No. 8/1993 was filed by the applicants for re-admission of the appeal. Provision of law under which the application was made was not indicated. Objection was raised on behalf of the non-applicants that the application had been filed against a dead person and was therefore not maintainable. The objection was upheld and by order dated 12-7-1993 CMP No. 8/1993 was rejected. Thereafter on 20-7-1993 CMP No. 23/1993 was filed for re-admission of the appeal along with CMP No. 8/1993 for condonation of delay.
6. The delay is sought to be explained by pointing out that CMP No. 8/1993 which was the first application for re-admission of the appeal was filed within time; the respondent of the said application was wrongly described as Smt. Kailash Devi on account of the fact that the learned counsel representing the applicant at that stage had not informed the applicant that Smt. Kailash Devi had died and in her place the present non-applicants had been substituted and in fact the certified copy the order dated 9-3-1993 also did not disclose the names of the present non-applicants. On these facts the applicants assert that they were bona fide pursuing the remedy through CMP No. 8/1993 and accordingly the period during which the said CMP remained pending was liable to be excluded. The application has been opposed on behalf of the non-applicants. Their learned counsel Shri J.P. Singh has submitted that Section 5 of the Limitation Act does not apply to an application for re-admission of Letters patent appeal. He has further submitted that the explanation offered on behalf of the applicants is not sufficient to condone the delay as the substitution application was allowed in the presence of the applicant's counsel. It is pressed that since the application was allowed in the presence of the applicant's counsel there can be no occasion for the applicants to plead lack of knowledge of the substitution of the non-applicants.
7. In support of the legal arguments submitted by the learned counsel he invites our attention to Article 168 of the Limitation Act which prescribes period of 30 days for filing application for re-admission of appeal dismissed in default of appearance. He has also read out before us Section 5 pf the Limitation Act.
8. Learned counsel for the applicants has submitted that the Court has ample jurisdiction to condone the delay even apart from Section 5 of the Limitation Act. It is also submitted that the present proceedings arise from a petition under Article 226 of the Constitution and the jurisdiction of this court under this article is not hedged in by technical rules prescribed in the Code of Civil Procedure and the Limitation Act. According to the learned counsel since the appeal is continuation of the original proceeding, the jurisdiction of this Court to do justice, ignoring the technical rules, remains available event at the stage of appeal. It is also submitted by the learned counsel that it was the fault of the applicant's counsel who was previously appearing in the case that he did not incorporate the amendment in his record and he did not inform the applicants about the substitution of the present non-applicants in place of Smt. Kailash Devi. The learned counsel has cited authorities in support of the proposition that a party should not be made to suffer on account of the fault or negligence of his counsel.
9. Section 5 of the J & K Limitation Act reads as follows:
"5. An appeal or an application for a review of a judgment or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiff's default or an application to set aside a decree passed ex parte in an original suit or appeal or an application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
10. The above provision applies to appeals of all descriptions, but so far as the applications are concerned, it does not apply to all of them. The section itself enumerates six categories of applications to which it applies. It then provides that it will apply also to applications to which it is made applicable by or under any enactment for the time being in force. It is not the case of the applicants that this section has been made applicable to applications of present nature by or under any enactment. The six specified categories are applications for-
i) review of judgment,
ii) leave to appeal,
iii) setting aside an order of dismissal of suit for plaintiff's default,
iv) setting aside a decree passed ex parte in an original suit or appeal,
v) bringing on record legal representatives of a deceased party, and
vi) setting aside an abatement of suit or appeal.
11. The present application does not fall under any of the six categories. The submission of the learned counsel for the non-applicants is therefore correct that Section 6(5) does not apply to the present application.
12. The above however is not the end of the matter. The question that still survives for consideration is whether there is no other power available to this court to deal with the present application.
13. As noticed earlier the parent proceeding which has given rise to the present application invoked the jurisdiction of this court under Article 226 of the Constitution. It is settled law that Court's jurisdiction under that Article is very wide and is not hedged in with technicalities contained in the Code of Civil Procedure and the Limitation Act. The question for consideration now is whether that jurisdiction is available at the initial stage only or is available at the appellate stage also. Appeal is continuation of the original proceedings. Therefore, the power available to the trial court, in the absence of any statutory provision to the contrary, is available to the appellate court also. On the same analogy the amplitude of the power that was available to this court at the time of hearing of the writ petition is available also in respect of the appeal and in respect of all applications made therein, while entertining a petition under Article 226, the question of laches is indeed considered. Therefore in the present proceedings also, we have to see whether the applicants are guilty of laches and whether the said laches are condonable.
14. On facts there is no dispute between the parties, within thirty days of the dismissal of the appeal, the period of limitation which the learned counsel for the non-applicants seeks to plead against the applicants, the latter filed application for setting aside the order of dismissal and restoring the appeal to its original number. In this application there was indeed a flaw. Instead of the substituted legal representatives of the deceased respondent, the respondent herself was impleaded as non-applicant. This mistake is explained on two facts, First the learned counsel who was representing the applicants at that stage did not inform the applicants about the substitution and second, that the certified copy of the order of dismissal issued by the Registrar of this court did not contain the names of the substituted legal representatives, but of the deceased respondent. Implicit in the first fact is the fact that the earlier counsel did not update his record of the case. There was no reason for the counsel subsequently engaged by the State to implead a wrong person in the application for restoration. Obviously the mistake was not deliberate. Because of the flaw the earlier application for re-admission was rejected and within eight days of the rejection fresh application for re-admission was made along with the application for condonation of delay. On these facts, in our opinion the laches have been sufficiently explained.
15. In view of the above CMP No. 180/1993 is hereby allowed and the delay in filing the CMP No. 23/1993 is condoned. Let the CMP No. 23/1993 be now listed.