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2009 DIGILAW 649 (JK)

Nazir Ahmad Parray v. Union Of India

2009-12-18

GH.HASNAIN MASSODI

body2009
1. Emphasis has been laid in judicial pronouncements; times without number, that the expression "sufficient cause" must get a liberal construction and a case otherwise genuine must not be thrown out on mere technicalities unless an individual approaching the court beyond the time prescribed under law, is guilty of inexplicable delay and gross negligence. It has been held that the expression "sufficient cause" 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 of the existence of institutions of courts. In AIR 1987 S. C. 1353 the Supreme Court has laid down following principles to be given consideration while dealing with the application for condonation of delay:- "Ordinarily a litigant does not stand to benefit by lodging an appeal late. 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. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 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. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 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." 2. Learned Additional District Judge, Srinagar vide order dated 11th of March, 2009 oblivious to the settled legal position has declined to condone delay of 11 days in filing Civil First Appeal. Learned Additional District Judge, Srinagar vide order dated 11th of March, 2009 oblivious to the settled legal position has declined to condone delay of 11 days in filing Civil First Appeal. The application for condonation of delay appears to have been filed on 12.7.2007 to explain the delay of 11 days in filing the Civil First Appeal and it took learned 1st Appellate Court about two years to decide whether 11 days delay was to be condoned. Be that as it may, the facts lie in a very narrow compass and may be, in the first instance given a closer look. The appellant filed a civil suit in the court of Sub Judge PT & E Magistrate, Srinagar on 18.4.2006. The appellants case was that the appellant had been employed as daily rated worker during the period from 1981 to 1983 and where-as his co workers were engaged by the defendant/ respondents the appellant had been left out and discriminated against. Learned trial judge vide Order dated 31st of March, 2007 decided the preliminary issues in favour of the respondents and against the appellant and returned the plaint under Order VII Rule X with an option to the appellant to present the same before the competent Forum. Learned trial Judge was of the opinion that the civil court lacked jurisdiction to try the suit and that the matter fell within the jurisdiction of Central Administrative Tribunal. The appellant 11 days beyond the time prescribed for filing appeal against the order of learned Sub Judge PT & E Magistrate, Srinagar presented memo of appeal along with an application under Section 5 of J&K Limitation Act before the 1st Appellate Court. It was pleaded that the delay on the part of the appellant in filing the appeal was not deliberate or intentional and that the delay was caused due to the reason that the appellant approached the Central Administrative Tribunal for redressal of his grievances and even the Tribunal had informed the appellant that the matter did not fall within its jurisdiction and was to be dealt with by the Civil court. The appellant pleaded that because of time consumed in approaching the Central Administrative Tribunal the appellant could not approach the court well in time with the appeal. The appellant pleaded that because of time consumed in approaching the Central Administrative Tribunal the appellant could not approach the court well in time with the appeal. Learned 1st Appellate court after a long drawn discussion on the option to take up the appeal for final disposal at the threshold stage proceeded to observe that the preliminary objection with regard to the maintainability of the appeal/ condonation of delay was to be decided first. The discussion was made against the backdrop of prayer made by the counsel for the appellant that the appeal itself may be taken up for final disposal. Learned 1st appellate court after brief survey of facts and events proceeded to decline the prayer for condonation of delay on the ground that there was "inordinate and considerable delay" in filing the appeal and that the delay was not explained by the appellant. Learned Judge proceeded to observe that "the appellant is duty bound to give account of each and every day after the plaint was returned to him." The 1st appellate court did not rely on law laid down in AIR 1987 SC 1353 on the ground that the case was anterior in point of time to case reported as AIR 1988 SC 2276 where following observations were made:- "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." 3. Learned 1st Appellate court was not impressed by the ground pleaded in the condonation of delay application filed by the appellant. 4. The baseline in the matters relating to condonation of delay is that the rules of limitation are not punitive in character or meant to destroy the rights of the parties and that delay in approaching the court within prescribed time must be condoned, if the explanation offered is plausible and convincing and further surrounding circumstances are not indicative of the delay being part of dilatory tactics or the person asking for delay being guilty of gross negligence. In JT 1998 SC 242 titled N. Balakrishnan v. M. Krishnamurthy, the Supreme Court observed:- "A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. In JT 1998 SC 242 titled N. Balakrishnan v. M. Krishnamurthy, the Supreme Court observed:- "A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The court has held the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not putforth as part of a dilatory strategy the court must show utmost consideration to the suitor...." 5. When it is insisted that the expression "sufficient cause" must be given a liberal construction what is meant to be conveyed is that the explanation tendered by an individual explaining the delay must not be evaluated on the touchstone of standard of proof as is required in criminal proceedings. Law does not insist on strict proof of the cause shown. It would suffice if the explanation offered on the face of it sounds reasonable, plausible, cogent and convincing. It is true that the court while dealing with an application for condonation of delay is to focus on sufficiency of delay rather than period of delay. But the period of delay is, nonetheless relevant, as longer the period more difficult it is for an individual seeking condonation of delay to convince the court that he had a sufficient cause for not approaching the court within the time prescribed under law. An individual praying for condonation of delay is not required to explain the delay hour by hour and day by day. It is enough, if delay because of its duration is neither long nor inordinate and the party approaching the court comes up with reasonable explanation to spell out the cause for delay. It has been observed in AIR 2005 SC 2191:- "The proof of sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the courts. It is enough, if delay because of its duration is neither long nor inordinate and the party approaching the court comes up with reasonable explanation to spell out the cause for delay. It has been observed in AIR 2005 SC 2191:- "The proof of sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the courts. What counts is not the length of delay but the sufficiency of cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion." The Supreme Court proceeded to further observe: "The expression "sufficient cause" should, therefore be considered with pragmatism and justice oriented approach rather than the technical detection of the "sufficient cause" for explaining every days delay" 6. The court when approached by a justice seeker with a prayer for condonation of delay in commencing legal proceedings has to be alive to the economic and educational status of the applicant, his resources to have access to the court and similar other facts. In the case in hand the appellant was a daily rated worker from a remote village of Budgam District and had been asked to approach the Central Administrative Tribunal having its seat at Chandigarh. When the applicant had sworn an affidavit in support of his application for condonation of delay stating on oath that the delay was not caused intentionally and deliberately but by his having been constrained to approach the Central Administrative Tribunal and return empty handed, and further placing on file copy of the application presented to Central Administrative Tribunal duly signed by his Lawyer, there was no reason for the 1st appellate court to disbelieve the applicant/ appellant and throw out a case in which the applicant/ appellant intended to raise important and triable issues, more so when no counter affidavit was sworn by the respondent. In AIR 2008 NOC 1100 J&K, taking notice of the attending facts and circumstances and in particular that the petitioner was a village rustic and illiterate the court condoned the delay of 431 days in filing the appeal. The very premise of the impugned order "the delay was inordinate and considerable" and the party was duty bound to give account of each and every day is factually incorrect and legally untenable. The delay of 11 days cannot be termed as inordinate and considerable delay. The very premise of the impugned order "the delay was inordinate and considerable" and the party was duty bound to give account of each and every day is factually incorrect and legally untenable. The delay of 11 days cannot be termed as inordinate and considerable delay. As has been held in AIR 2005 SC 2191 (Supra). The appellant was not required to give hour by hour and day by day account of the period from the date the plaint was returned till the filing of the appeal. 7. For the reasons discussed above, the revision petition is allowed and the order dated 11.3.2009 is overset. The appellate court shall take up the appeal for hearing on 31.12.2009 when the parties shall appear before it. Record be send down along with the copy of this order. C. Revision is disposed of accordingly along with CMP.