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2009 DIGILAW 653 (JK)

State Of J. &K. v. Amir-ud-Din Baba

2009-12-18

GH.HASNAIN MASSODI

body2009
1. The petitioners are aggrieved of the order dated 23.09.2008 whereby learned District Judge, Budgam, has dis-allowed an application for condonation of delay under Section 5 of the Jammu & Kashmir Limitation Act, in filing a review petition, seeking review of judgment/decree passed by Principal District Judge, Budgam, in suit titled Amir-ud-Din Baba alias Mashooq v. Managing Director J&K PCC and others. The respondent No.1 herein is a fire sufferer of Charari Sharief. The respondent commenced a suit more than a decade back after devastating fire engulfed Charari Sharief town some time in 1995 and reduced part of the town around and in vicinity of shrine of Sheikh Noor-ud-Din Noorani (R.A.) to ashes. 2. The respondents case before the trial court was that the respondent was owner of two residential buildings/ structures as also a chunk of land measuring 8 marlas at Baba Mohalla, Ward No.4; that both the residential houses were claimed by the devastating fire. The respondent pleaded that in accordance with the policy formulated by the State Government to grant relief to the fire sufferers, the respondent was entitled to ex-gratia relief of Rs. 02 lakhs as also incentive in the similar amount for each of the residential house along with interest at the bank rates on the said amount. The respondent also claimed to be entitled under the relief package to two plots of land measuring 10 marlas each. The respondents case was that though the relief package in respect of one of the residential house had already been given to the respondent, the petitioners were dilly dallying in making available rest of the relief package to the respondent. 3. The respondent in the aforesaid backgrounds filed the suit in question which was contested by the petitioners and after both the parties lead evidence the learned Principal District Judge, Budgam, vide judgment dated 30.04.2005 decreed the suit. The petitioners slept over the matter for about 15 months and woke-up only after the executing court took steps to execute the decree. 4. The petitioners on 8th of July, 2006 filed a review petition before the learned Principal District Judge, Budgam, seeking review of the judgment and decree dated 30.04.2005. The review petition being apparently time barred, the petitioners filed an application under Section 5 of the Jammu & Kashmir Limitation Act, praying for condonation of delay in filing the review petition. 4. The petitioners on 8th of July, 2006 filed a review petition before the learned Principal District Judge, Budgam, seeking review of the judgment and decree dated 30.04.2005. The review petition being apparently time barred, the petitioners filed an application under Section 5 of the Jammu & Kashmir Limitation Act, praying for condonation of delay in filing the review petition. Learned Principal District Judge, Budgam, on perusal of the application and the objection and after hearing the parties declined to condone delay and rejected the condonation of delay application vide order dated 23.09.2008. Learned trial judge after summarizing the averments made in the condonation of delay application observed that even on bare perusal of the application no sufficient cause was shown for not preferring the review petition in time. Learned Judge observed that the petitioners were keenly contesting the suit, had their offices at Budgam and Chadoora, within the territorial limits of the Court and had no reason not to approach the court with the review petition within the time prescribed under the law. It was pointed out that the petitioners had bothered to approach the court only after steps were taken for execution of the decree. Learned judge was sour that the petitioners as State functionaries were taking judicial process for granted and more often failed to respond to the orders passed by the court and approach the court at their convenience when the orders are passed by the executing court. 5. Learned judge while dealing with the condonation of delay also took an overview of the review petition and the grounds pleaded therein in support of their plea to get the judgment/ decree reviewed. The perusal of the main review petition was appropriate as the fate of condonation of delay application also hinged on the ex-facie merit of the review petition. Learned judge found that what the petitioners under the cover of review sought was right to adduce further evidence in the main suit and that the object of the review petition was well beyond the scope of review. Learned judge thereafter placing reliance on law laid down in Executive Engineer & anr. v. Naik Alam Paswal & anr, [2004(1) JKJ HC-145], held the application for condonation of delay to be worthless and the petitioners to have failed to show any sufficient case for not filing the review petition within time and dismissed the review petition. 6. Learned judge thereafter placing reliance on law laid down in Executive Engineer & anr. v. Naik Alam Paswal & anr, [2004(1) JKJ HC-145], held the application for condonation of delay to be worthless and the petitioners to have failed to show any sufficient case for not filing the review petition within time and dismissed the review petition. 6. The petitioners again went into deep slumber and 185 days after the order dated 23.09.2008 of Principal District Judge, Budgam, was passed, filed instant civil revision before this Court to call in question the aforesaid order dismissing the condonation of delay application. The revision being time barred, the petitioners have come up with an application for condonation of delay. 7. The condonation of delay in filing revision is sought on the grounds that the delay occasioned is neither intentional nor deliberate; that the record had to be consulted at different levels and collected from different offices and to pass through many tables in the department. It is pleaded that the delay was attributable to the departmental wrangles. The condonation of delay is sought on the ground that in the opinion of the petitioners, the petitioners have a good case and dictates of principle of natural justice warrant that petitioners be allowed to agitate the matter. 8. The application is resisted inter-alia on the grounds that the State is not to be given any preferential right over the ordinary litigant and the provisions of Limitation Act are not discriminatory and expected to be uniformly applied to all the litigants. It is averred that learned Principal District Judge, Budgam, after according due consideration to the case set-up for condonation found no merit in the case and the petitioners have failed to make out a case for condonation of delay. It is pointed out that the trial court has not passed the judgment and decree which was sought to be reviewed in exparte, but after proper contest and thus question of violation of principle of natural justice would not arise. The respondent questioning the bonafides of the petitioners insists that the application is intended only to protract the matter and deprive the respondent of the benefits of decree/ judgment. It is insisted that the respondent would be a victim of serious prejudice in the event application is allowed and the delay condoned. 9. Heard and considered. The respondent questioning the bonafides of the petitioners insists that the application is intended only to protract the matter and deprive the respondent of the benefits of decree/ judgment. It is insisted that the respondent would be a victim of serious prejudice in the event application is allowed and the delay condoned. 9. Heard and considered. I have gone through the petition and heard learned counsel for the parties. Learned counsel for the petitioner in his arguments has elaborated on the background in which application has been filed and dilated on the averments made in the application. The counsel for the respondent on the other hand while insisting that no cause muchless a sufficient cause was shown by the petitioner has sought support from law laid down in:- 1. AIR 1998 SC 2276 2. 2003(11) SLJ 467 3. 2002(10 SLJ 31 4. 2006 SLJ 619 5. 2002(1) SLJ 261 6. C.Rev.No.l 36/2001, date of decision 27.03.2003. 7. 2004(1) SLJ 247 8. 2004(11) SLJ 477 In AIR 1998 SC 2276, the Apex Court has observed as under: "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." 10. In 2000 SLJ 331, it has been held that "the State is as good a litigant as other private party and equal treatment to all litigants must be given. The principle of law also finds expression in 2001 SLJ 364 and 2001 SLJ 445 and also in 2003(II)SLJ 467, where condonation of delay was sought on the ground that time was consumed by various agencies involved in the process of taking decision to the filing of the appeal. The Court observed that "the law does not require a special treatment for the State when it is litigating a cause." 11. The rules of limitation like rules of procedure are milestones that map out journey of lis before a court of law. To ensure that the lis proceeds at desired pace and is taken to its logical end unhindered and without any hiccups, it is necessary that the rules are followed and adhered to. The rules of limitation like rules of procedure are milestones that map out journey of lis before a court of law. To ensure that the lis proceeds at desired pace and is taken to its logical end unhindered and without any hiccups, it is necessary that the rules are followed and adhered to. It is only after lis follows the road marks and milestones that judgment can be rendered in time and grievance of the aggrieved set right. It is true that the procedural rules and rules of limitation are not punitive in character and not designed to trip people up, yet the rules have not been placed on statute book to be observed in breach and violated with impunity. It is to be kept in mind that failure of a party to litigation to knock the doors of justice within the time frame stipulated under law results in vesting of a right in the opposite party not to be dragged to a legal proceeding initiated against him or her. The provision of law making room for condonation of delay in the event "sufficient cause" is shown in not approaching the court within the prescribed time is to be interpreted against the aforesaid backdrop. The petitioners while invoking Section 5 of the Limitation Act and pleading sufficient cause for not filing the review petition before the court below or the revision petition before this Court are expected to not only plead a cause but also to show that, on the strength of averments made and in attending circumstances, the cause shown is sufficient within the meaning of the aforesaid provision. Without voicing any disagreement with the proposition of law that Section 5 of the Limitation Act should receive a liberal construction and that when substantial justice is pitted against the technical justice, the substantial justice must have its way, it needs to emphasized that interpretation in the name of liberal approach is not to be stretched to an extent to reduce the requirements of Section 5 to a mere formality and render it superfluous and mere vestige. 12. In the instant case what must persuade the court to decline the prayer for condonation of delay and reject the application is negligent conduct of the petitioners not only in filing the review petition before the court of Principal District Judge, Budgam, but also in filing the civil revision before this Court. 12. In the instant case what must persuade the court to decline the prayer for condonation of delay and reject the application is negligent conduct of the petitioners not only in filing the review petition before the court of Principal District Judge, Budgam, but also in filing the civil revision before this Court. It may be stated at the cost of repetition that the petitioners made an attempt to seek review of the judgment and decree dated 30.04.2005, fifteen months after the judgment and decree were passed. The prayer for condonation of delay was declined by the Principal District Judge, Budgam. This was sufficient to put the petitioners on alert and prompt the petitioners to approach this Court with a civil revision assailing the order dated 23.09.2008 without loosing any time. The petitioners probably nursing a belief that the rules of limitation are rarely being given teeth by the law courts felt it convenient to sleep over the matter for more than six months and have approached this court after the aforesaid inordinate and unexplained delay. The petitioners having regard to their previous conduct as also the averments made in the instant application have failed to make out sufficient cause in terms of Section 5 of the Jammu & Kashmir Limitation Act and thus a case for condonation of delay. 13. Having regard to the contents of the review petition that was sought to be presented before the court below there can be hardly any disagreement with the learned Principal District Judge, Budgam, that no case for review was pleaded muchless made out in the petition. Same is true about the Civil Revision. 14. For the reasons discussed above, the condonation of delay application is dismissed. The fate of the civil revision petition can be no different. The civil revision is also dismissed.