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2006 DIGILAW 314 (JK)

State Of J. &K. v. Gh. Nabi Kashkari

2006-12-27

J.P.SINGH

body2006
1. This appeal is directed against Order dated 17-07-2006 of learned 2nd Additional District Judge, Srinagar dismissing appellants application for condonation of delay in filing appeal against decree and judgment dated 31st July, 2000 of City Judge, Srinagar in Civil Suit titled abdul Gafoor Kashtkari versus State, and consequently the State appeal too as having been filed beyond the prescribed period of limitation. 2. The State of J&K had sought condonation of delay in filing appeal which was delayed by about eleven months on the plea that neither had it any notice of the suit nor was it summoned by the court, and that, it was only after it had received a latter from its standing counsel of General Administration Department on 18-7-2001 that it came to know of passing of decree against the State. 3. Learned 2nd Additional District Judge, Srinagar did not find any merit in the grounds urged by the State to seek condonation of delay in filing appeal and rejected its application by recording the following finding: "From the perusal of file, it transpires that ld. 4th Additional District Judge Srinagar submitted this suit on 07.11.1997 to the ld. Principal District Judge, Srinagar for transferring the same to the court for disposal under law, as the pecuniary jurisdiction of the Sub-Judges was enhanced. I have gone through the record of the trial court also, which reveals that the file has been received on 11.12.1997 by the court of City Judge Srinagar, in which the ld. Counsel for the defendant No.2 appeared. Then on subsequent dates i.e. 02.05.1998, 15.05.1998, 28.09.1998, 13.10.1998, 30.04.1999, 05.05.1999, 07.06.1999, 18.06.1999, 12.08.1999, 20.10.1999, 26.11.1999, 17.12.1999, 18.02.2000, 27.03.2000, 19.04.2000, 07.07.2000 and 26.07.2000, the counsel for the appellant/ applicant have caused their appearance before the trial court and ultimately the judgment and decree was passed by the ld. Trial court on 26.07.2000 after hearing the ld. Counsel for the parties. I refrain to comment as to why the State has not been defended. It irks in my mind a question as to what should be the role of a lawyer in the court. It should be positive and helping one. He must be loyal to his client as well as to the court. He is custodian of trust, which a litigant whether he may be a private or Govt. It irks in my mind a question as to what should be the role of a lawyer in the court. It should be positive and helping one. He must be loyal to his client as well as to the court. He is custodian of trust, which a litigant whether he may be a private or Govt. reposes in him, if the betrays in any way, the result would be the miscarriage of justice. If remembers me the saying of an immanent Lawyer late C. K. Daftari who once told his junior colleague, Mr. Fali. S. Nariman (now at present Senior Lawyer of the Honble Supreme Court), as under:- Always remember, Fali, it is better to spend more time for thinking about a case than merely reading the brief.." (Indian Express 31-03-2000) In the instant case, the lawyers have caused their presence on behalf of the State, perused the brief, but without having spent more time for thinking on the case that is why the appellant/ applicant has failed to defend its case properly. The next lacuna is the role of functionaries of the State, who took matter casually. If the court sends a summon, the functionaries seldom cares to cause their appearance before the court of law. The result is that the State suffers and thus great loss is caused to the property of the State and also the State exchequer. On the one hand, there is negligence on the part of penal of lawyers representing the State. On the other hand the appellant/ applicant cannot say that he was ignorant about the proceedings of the case. The authorities relied by ld. Counsel for the appellant/ applicant does have no applicability on the facts and circumstances of this case. There is no doubt about this fact that where there is no gross negligence or deliberate in-action, the courts generally should grant condonation and the word sufficient cause used in section 5 of the Limitation Act must receive a liberal interpretation, so as to advance the cause of justice. In the instant case, there is negligence on the part of the State to defend its case and it does not lie in the mouth of the appellant/ applicant to say that he was not at all summoned by the ld. Trial Court. In the instant case, there is negligence on the part of the State to defend its case and it does not lie in the mouth of the appellant/ applicant to say that he was not at all summoned by the ld. Trial Court. The State functionaries have shown a casual attitude alongwith lawyers who represented the case at different levels, therefore, does not deserve grant of condonation, which is hereby rejected. Since the appeal has been filed beyond the period of limitation, therefore, the same shall also stand dismissed as time barred. File to go to records after due completion. Announced 17.07.06 2nd Additional Judge Judge Srinagar. 4. At the hearing of this appeal, Mr. Manzoor Ahmed Dar, learned counsel for the plaintiffs/ respondents urged that States appeal was not maintainable because the impugned order was not appealable under the Code of Civil Procedure. Meeting this preliminary objection, Mr. J.H.Reshi, while supporting the maintainability of the appeal urged in the alternative that if the appeal was not maintainable the same may be treated as a Civil Revision to prevent injustice which had been caused to the State because it stood deprived of its right to contest the decree, on a technical approach adopted by the Ist Appellate Court in considering as to whether or not there was sufficient cause which prevented the State from preferring an appeal against the decree within the prescribed period. 5. I have considered the submissions of learned counsel for the parties and find that the order impugned in this appeal was not appealable because dismissal of an application seeking condonation of delay in filing Civil Ist Appeal, is neither a decree nor is it appealable under Order 43 of the Code of Civil Procedure or under any other provision of Laws in force. States appeal against the impugned order is, thus, not maintainable. I, however, find force in the submission of Mr. J. H. Reshi, that in case this court found that the State had been deprived of its right to contest the decree on the basis of a technical approach having been adopted by the Ist Appellate Court, it would be a case for exercise of revisional jurisdiction to prevent failure of justice. I would, thus, like to examine the reasoning given by learned 2nd Additional District Judge, Srinagar in rejecting the application of the State to condone delay in filing the appeal. 6. I would, thus, like to examine the reasoning given by learned 2nd Additional District Judge, Srinagar in rejecting the application of the State to condone delay in filing the appeal. 6. Learned Additional District Judge, Srinagar has castigated the penal of lawyers attributing negligence to them besides attributing casual approach to the State functionaries in defending the State. 7. After having said much about the penal of lawyers and the State functionaries in his finding, the learned 2nd Additional District Judge had held that sufficient cause had not been made out by the State to seek condonation of delay. I do not find any justification in the conclusion reached at by learned 2nd Additional District Judge, Srinagar in penalizing the State rather than its functionaries and lawyers who had been neglectful, careless, slack, casual and callous in discharging their functions and duties. 8. The property in question, is admittedly a State land, which the respondents claim to be in their adverse possession. Property of the State is peoples property. Every effort is thus, required to be made by the functionaries of the State to protect peoples property and their confidence in it, and no providence is permissible for the remissness, callous and casual approach of those whose duty it is, to protect the property of the State. Whenever it comes to the notice of a court Tribunal or Forums that the functionaries responsible for protecting the State and its properties are found deficient and callous in discharging their functions, it is the officers who are to be proceeded against and penalized and not the State which operates only through an impersonal machinery. 9. In view of the categoric finding recorded by the learned 2nd Additional District Judge that the functionaries of the State and lawyers dealing with the case had failed to discharge their functions and duties, the State was required to be protected rather than ebbed out of the contest to the decree. 10. I am, therefore, of the view that the learned 2nd Additional District Judge, Srinagar has erred in dismissing the application of the State on finding that the functionaries through whom it had been operating to defend the suit, had failed it. I, therefore, find that this is a fit case in which this court should exercise its revisional jurisdiction to avoid failure of justice. I would, therefore, treat this appeal as Civil Revision. 11. I, therefore, find that this is a fit case in which this court should exercise its revisional jurisdiction to avoid failure of justice. I would, therefore, treat this appeal as Civil Revision. 11. Learned 2nd Additional District Judge, Srinagar has dismissed States application on finding that an incorrect statement had been made by the State that neither had it any notice of the suit nor was any notice issued to it on the suit of the respondents, whereas it stood proved on facts that the suit had been contested by the State appellant all though and that too by more than one lawyers who had been appearing in the case from time to time. 12. While dealing with the matters, coming up before a court for adjudication, regard needs to be had to the real dispute between the parties and every effort is required to be made by the courts to ensure that real justice was imparted to the parties by resolving their contentious issues. This has to be so, more particularly, in those disputes where rights to property were involved. Short-circuiting the litigation by adopting a technical approach in dismissing cases rather than adjudicating the real issues involved in the litigation would not, in my opinion, advance the cause of justice, for dismissal of a lis, sans adjudication on contentious issues and without deciding the real dispute between the parties, generates painful feelings in the minds of the seekers of justice, which may ultimately pollute their minds leading to unhealthy situations and ultimately affecting seriously the purpose of administration of justice. 13. The dispute in the case in hand pertains to immovable property which admittedly was owned by the State. The respondents had claimed themselves to be its owner because of their being in adverse possession thereof. This was not, as such, a dispute which was required to be refused adjudication by adopting a technical approach and refusing condonation of delay. Delay in filing the appeal in this case could well be condoned by compensating the plaintiffs for the delay caused because of States inaction to file the appeal within the prescribed period of limitation, by awarding suitable costs. 14. Delay in filing the appeal in this case could well be condoned by compensating the plaintiffs for the delay caused because of States inaction to file the appeal within the prescribed period of limitation, by awarding suitable costs. 14. I would, therefore, while allowing this Civil Revision, upset the impugned order and allow States application seeking condonation of delay in filing appeal, but subject to payment of Rs.10,000/- as costs by it to the respondents within a period of one month. The appeal of the appellants shall be taken to have been filed within the prescribed period of limitation. The State is left free to recover the amount paid by way of costs to the respondents from all those who are found, on enquiry, remiss in discharge of their duties/ functions. 15. Parties, through their counsel, are directed to appear before learned 2nd Additional District Judge, Srinagar to argue the appeal on merits on 3rd of February, 2007. Registry Judicial to send the records to Learned 2nd Additional District Judge, Srinagar so that the appeal was taken up on the date fixed, for hearing. This petition is accordingly, allowed.