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2009 DIGILAW 662 (JK)

State v. Gh. Nabi Gadda

2009-12-18

Hasnain Massodi

body2009
1. The applicants seek condonation of delay in filing application for restoration of Civil Revision No. 29/1998 titled State of Jammu and Kashmir and another v. Haji Ghulam Ahmad Gadda dismissed in default on 22.5.2005. Before adverting to the grounds set-out in the application it would be appropriate to summarize the back ground facts. 2. The predecessor of non-applicants herein namely Haji Ghulam Ahmad Gadda filed a suit for declaration and injunction in the Court of City Judge Srinagar, on 31.5.1982. The plaintiff sought a declaratory decree declaring the plaintiff to be Kama of land measuring 31 kanal 2 Marla’s comprising Survey No’s. 80 and 81 Min. in Estate Rakh Gundshah Bemina. The defendants were summoned. The defendants failed to appear and contest the suit and were set exparte on 31.8.1988. The trial Court after recording evidence in exparte passed exparte judgment and decree. The defendants filed an application for setting aside the exparte judgment and decree. The application was contested by the plaintiff and dismissed on merits. The order dismissing the application for setting aside the exparte judgment and decree was not questioned before the Appellate Court. The judgment debtors instead questioned legality of the exparte judgment and decree through medium of a Civil Suit before the Ld. District Judge. Alongside an application for staying the execution of the impugned judgment and decree was also preferred. The Learned District Judge Srinagar stayed execution of the decree. The decree holder preferred a Civil 1st Misc. Appeal Challenging the order of District Judge before this Court. This Court disposed of the appeal with the direction to the Ld. District Judgment Srinagar to hear the matter afresh. The judgment debtors, thereafter instead of pursuing the Civil Suit filed before the Ld. District Judge, left the Civil Suit halfway and preferred to approach the Executing Court for staying the execution of the exparte judgment and decree. 3. The Execution Petition for executing the exparte decree was filed on 7.12.1988 and on 15th July 1994 execution of the decree was ordered. The decree was amended at the instance of decree holder on 4.7.1997. The judgment debtors approached the Executing Court with two applications dated 12.9.1994 and 8.11.1994, praying for staying the execution. The applications were disallowed and the execution of the decree directed vide order dated 29.12.1994. The decree was amended at the instance of decree holder on 4.7.1997. The judgment debtors approached the Executing Court with two applications dated 12.9.1994 and 8.11.1994, praying for staying the execution. The applications were disallowed and the execution of the decree directed vide order dated 29.12.1994. The order dated 29.12.1994 rejecting the applications filed by the judgment debtors, was assailed in a Revision Petition before this Court. The Revision Petition registered as C.R. 03 of 1995 was allowed vide order dated 1.8.1996 and the Executing Court directed to deal with the objections afresh after hearing the parties. The Executing Court heard the parties afresh and vide order dated 30.6.1997 the objections were once again rejected and execution of the decree ordered. The order of the Executing Court dated 13.6.1997 was challenged in Civil 1st Appeal before 1st. Additional District Judge Srinagar. The appeal was dismissed vide order dated 4.5.1998. The order dismissing the Civil 1st Appeal was left un-assailed. 4. The judgment debtors after meeting no success in Executing Court filed a Civil Revision in the High Court questioning legality of the order of Executing Court dated 30.6.1997 against which an earlier challenge in CIA before 1st Additional District Judge had failed. The Civil Revision was registered as C.R. NO. 29/1998. The decree holder passed away on 22.12.2001 while the Civil Revision No. 29 of 1998 was awaiting disposal. The application of substitution of legal heirs (CMP No. 256/2004) was allowed vide order dated 27.9.2004 subject to the condition that the petitioners file registered covers etc. for service of the substituted respondents within two weeks, failing which the application for substitution was directed to stand "dismissed with out reference to the bench." The judgment debtors did not comply with the Court direction dated 27.9.2004 and failed to take the requisite steps and in view of the Court order dated 27.9.2004 the application for substitution was dismissed. The Learned Counsel for the petitioner vide order dated 30.11.2004 was, at his request, allowed two weeks time to seek legal remedy in the matter. Neither any legal remedy was sought nor the petitioner/judgment debtors, appeared to pursue the Revision Petition. The High Court vide order dated 22.2.2005 dismissed the Revision Petition. However, the order dated 22.2.2005 was recalled vide order dated 31.3.2005 and Civil Revision No. 29 of 1998 restored to its original number subject to payment of Rs. 2000 as costs. Neither any legal remedy was sought nor the petitioner/judgment debtors, appeared to pursue the Revision Petition. The High Court vide order dated 22.2.2005 dismissed the Revision Petition. However, the order dated 22.2.2005 was recalled vide order dated 31.3.2005 and Civil Revision No. 29 of 1998 restored to its original number subject to payment of Rs. 2000 as costs. The judgment debtors once again failed to comply with the order dated 31.3.2005 and on 16.5.2005 the Civil Revision was again dismissed. This time learned Counsel for the petitioner reported no instructions. 5. The applicants have not approached this Court for restoration of Civil Revision No. 29 of 1998 dismissed in default on 22.2.2005 to its original number, as also an application for Condonation of delay in filing application for restoration of the Civil Revision. The grounds urged in the condonation delay application are that the order of dismissal of Civil Revision No. 29 of 1998 or the earlier order to seek legal remedy was never communicated to the applicants/petitioners by their counsel; that the applicants/petitioners acquired knowledge regarding the dismissal of Civil Revision only after a new Counsel was engaged. It is averred that the delay is not willful or intentional and that a vital public interest is involved in the lis as State land measuring 30-35 Kanals at a prime location was at stake and the public interests was not to be allowed to suffer because of inaction and negligence of the erring officials or Counsel appearing on behalf of petitioners. 6. The non-applicants/respondents have taken a threshold objection to maintainability of the Revision Petition on the ground that the order dated 22.2.2005 mentioned in the application for condonation of delay, as the date on which the Civil Revision was dismissed in default, was no more open to challenge in as much as the order was recalled by the order dated 31.3.2005. It is averred that subsequent to recalling of the order dated 22.2.2005 vide order dated 31.3.2005. Counsel for the petitioner/applicants reported no instruction and the Civil Revision was dismissed vide order dated 16.5.2005. It is averred that subsequent to recalling of the order dated 22.2.2005 vide order dated 31.3.2005. Counsel for the petitioner/applicants reported no instruction and the Civil Revision was dismissed vide order dated 16.5.2005. The condonation of delay application is also resisted on the ground that the Revision Petition had abated after the petitioners failed to take steps subject to fulfillment of which the application for substitution was allowed on 27.9.2004; that the application was dismissed on 22.2.2005, when the applicants/petitioners failed to take steps within two weeks allowed vide order dated 30.11.2004 to seek legal remedy in the matter. The non-applicants/respondents claiming the condonation of delay application to be misconceived insist that the only aim of the applicants/petitioners was to deprive the non-applicants/respondents from the benefits of decree passed way back in the year 1988. 7. I have gone through the record and heard counsel for the parties. 8. The application for restoration of Civil Revision No. 29/ 1998 is sought to be filed after the delay of a little less than four years (3 years and 317 days to be exact). It is argued by Counsel for the applicants/petitioners that interim orders passed in pending lis, prior or subsequent to the final order merged with the final order and that similar orders passed after the order dated 22.2.2005 had merged in the order dated 22.2.2005. Dwelling upon the said argument, it is insisted that the application for condonation of delay was not to be held non-maintainable only because the applicants/petitioners had pleaded that the Civil Revision No. 29 of 1998 had been dismissed in default on 22.2.2005 are said to have merged with the aforesaid order. It is next insisted that no period of limitation is prescribed under the Jammu and Kashmir limitation Act for substitution of legal heirs in a Revision Petition or for restoration of Revision Petition dismissed in default and thus residuary Art. 181 was attracted prescribing period of three years for all such matters to which no particular Article applies. Reliance in this regard is placed on AIR 1953 H.P. 102 , AIR 1989 J&K 35 , AIR 1983 SC 304 . It is argued, that in that view of the matter there is only a delay of 317 days in filing the application for restoration of Civil Revision NO. 29 of 1998. Reliance in this regard is placed on AIR 1953 H.P. 102 , AIR 1989 J&K 35 , AIR 1983 SC 304 . It is argued, that in that view of the matter there is only a delay of 317 days in filing the application for restoration of Civil Revision NO. 29 of 1998. The Court, it is argued, may even Sou-Motu revise the order/judgment of a Court or restore the Revision Petition dismissed in default by exercising inherent powers under Section 151 of Civil Procedure Code. Support, to canvass the argument, is sought from law laid down in AIR 1982 Punjab and Haryana 432. It is pointed out that cause title of the Revision Petition stands corrected in wake of the order of the Court and that the non-applicants after having got themselves substituted in the Execution Petition are not left with an argument to insist that Civil Revision No. 29 of 1998 had abated to reinforce the argument, support is sought from law laid down in AIR 1996 SC 1819 . It is further argued that the Civil Revision No. 29 of 1998 sought to be revived is directed against order of the Executing Court whereby the Court has rejected the objections preferred by the applicants/petitioners/judgments debtors under Section 47 of Civil Procedure Code, on the ground that the Executing Court could not go behind the decree, least realizing that the decree passed by the Court without jurisdiction was no decree in eye of law. It is urged that as exparte judgment and decree were, rendered without jurisdiction and in derogation of law, the decree was non executable. Counsel for the applicants/petitioners to buttress his arguments has placed reliance on law laid down in; AIR 1954 SC 340 , AIR 1988 All 225 , AIR 1996 SC 1819 , 2004 (I) S.L.J. 303, AIR 2004 Cal 267 , 2006 (II) S.L.J. 569, AIR 2006 SC 2473 . It is next argued that the expression "Sufficient Cause" is to be liberally construed and delay condoned where it is not deliberate and willful. 9. It is next argued that the expression "Sufficient Cause" is to be liberally construed and delay condoned where it is not deliberate and willful. 9. Learned Counsel for the non applicants/respondents on the other hand has only elaborated the grounds set out in the objections and insisted that the applicants/petitioners had failed to make out a case for condonation of delay in as much as neither sufficient cause was shown which prevented the applicants/petitioners from approaching the Court well in time nor was the Civil Revision No. 29 of 1998 restorable because of its abatement in terms of order dated 22.5.2002. 10. Why should there be a time frame prescribed under law for a legal remedy? This may be a thresh-hold question looking for answer whenever an application for condonation of delay and in particular long and inordinate delay, is made. The answer to the questions is bound to held one to understand the object of law of Limitation and the circumstances when delay must be condoned. 11. Supreme Court in N. Balakrishnan v. M. Krishanmurthy has commented an underlying philosophy as under: "Law of Limitation fixes a life span for ..... legal remedy for the redress of the legal injury ..... Time is precious and the wasted time would never resist. During the efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So, a life span must be fixed for each remedy. Unending period for launching the remedy may lead of ending uncertainty and consequential anarchy. Law of Limitation is thus founded on public policy. It is enshrined in maxim, "Interests reipulicae up sit finis litium (It is for the general welfare that a period be put to litigant). Rules of Limitation are not meant to destroy the right of the parties. They are meant to see that the parties do not resort to dilatory tactics but to seek their remedy promptly. The idea is that every legal remedy must be kept alive for legislatively fixed period of time." 12. Rules of Limitation are not meant to destroy the right of the parties. They are meant to see that the parties do not resort to dilatory tactics but to seek their remedy promptly. The idea is that every legal remedy must be kept alive for legislatively fixed period of time." 12. The Social Planners/Law makers while prescribing a time frame or life span for a legal remedy visualized that situations may arise where victim of legal injury for the reasons beyond his control may not be in a position to seek legal remedy within prescribed period and found it just and proper to enable the victim of legal injury to approach the Court with a plea that he was prevented by a "sufficient cause" from approaching the Court within the prescribed time and get the delay condoned. In AIR 1987 SC 1353 and in a number of authoritative pronouncements it has been emphasized that the expression sufficient cause should be given a liberal consideration. It has been laid down time and again that the Courts should not insist on strict proof of the cause pleaded or assess and evaluate the cause at the touchstone of the standard of proof followed in a criminal case. An individual asking for condonation of delay, nonetheless, is required to plead the "sufficient cause" and to substantiate such case on the strength of material placed on the file and the surrounding circumstances. The expression sufficient cause is not to be liberally construed to such an extent that the rules are rendered inconsequential and reduced to a "dead provision" on the statute book. The Rules of Limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner, so as to save the system from anarchy. It has been held that "where the State as a litigant approaches the Court with a prayer for condonation of delay, the Courts must not loose sight of certain disadvantages, that the State as a litigant confronts. Such disadvantages or problems peculiar to the State as a litigant have been identified as "impersonal machinery", ......... "bureaucratic methodology" .......... the note making, file pushing, and passing on the buck ethos." 13. However, the identified disadvantages/problems can not be used as a camouflage to cover up negligence. Such disadvantages or problems peculiar to the State as a litigant have been identified as "impersonal machinery", ......... "bureaucratic methodology" .......... the note making, file pushing, and passing on the buck ethos." 13. However, the identified disadvantages/problems can not be used as a camouflage to cover up negligence. Whenever application for condonation of delay is made by a litigant including the State, it is to be equally borne in mind that expiry of the period of limitation prescribed for legal remedy gives rise to a right in favour of the opposite party to treat the matter as closed and concluded between the parties. The legal right that has accrued to the opposite party because of inaction and negligence on the part of the litigant seeking condonation of delay, is not to be cursorily defeated. The agony of the opposite party becomes more grave and painful when the negligence on the part of the litigant asking for condonation is, persistent and un repented, In short the delay is not to be condoned as a matter of course. The party has to plead and make out "sufficient cause in support of the prayer." Having said so, let us turn to the case in hand. 14. The case in hand presents a story of gross negligence on the part of the petitioners in defending the case, now projected to have some public importance. As is evident from the facts and events catalogued above, the petitioners failed to appear and contest the respondents suit despite due service of summons. The petitioners unsuccessfully made a feeble attempt to get the exparte judgment and decree set aside and thereafter failed and ignored to question the order dismissing their application under Order 9 Rule 13 CPC. The petitioners filed a Civil Suit before the District Judge Srinagar with prayer to declare the exparte judgment and decree dated 31st August 1988 null and void. The petitioners again failed to prosecute the suit and left the suit halfway resulting its dismissal for non prosecution. The order of Executing Court dated 30th June 1997 was assailed through Civil Revision No. 29/198. The petitioner again exhibited indifference and apathy in prosecuting the, matter before the High Court and due to lackadaisical attitude of the petitioners the Civil Revision was dismissed on 22nd February 2005. The order of Executing Court dated 30th June 1997 was assailed through Civil Revision No. 29/198. The petitioner again exhibited indifference and apathy in prosecuting the, matter before the High Court and due to lackadaisical attitude of the petitioners the Civil Revision was dismissed on 22nd February 2005. Earlier an application for substitution of legal heirs was allowed on 27.9.2004 subject to the conditions stated therein and the petitioners were duly reminded in the order itself that in the event the conditions were not satisfied, the applications for substitution of legal heirs of the respondent would stand dismissed without reference to the bench. The petitioners/applicants unmindful of the order failed to take requisite steps and application for substitution of legal heirs was dismissed. The counsel for the petitioners /applicants .thereafter on 13th November 2004 were at their request allowed to seek legal remedy within two weeks inconsequence of dismissal of the application for substitution. Neither the petitioners took any steps to seek legal remedy within the stipulated time nor appeared on 11th February 2005 when the Civil Revision came up before the Court. The petitioner/applicants failed to appear on 22nd May 2005 when the matter was again listed before the Court and on said date the Civil Revision was dismissed. The Civil Revision was, restored to its original number on the application of the petitioners vide order dated 31st March 2005 subject of payment of Rs. 2,000/- as costs. The petitioner failed to pay costs and on 16.5.2002 the learned counsel for the petitioners/applicants reported no instructions and Civil Revision was accordingly dismissed. The proceedings in the matter stretching over a period of more than 20 years depict persistent and gross negligence on the part of the petitioners. The Courts, both at Trial Court and Appellate Court level all along condoned the lapses made by the petitioners/applicants and granted indulgence taking lenient view of delays committed by the petitioners/applicants. The leniency shown by the Courts had undesired and unwarranted results. The petitioners/applicants instead of realizing their mistakes, noticing their lapses and making a resolve to prosecute the matter and project their cases with proper attention, felt emboldened to commit lapse after lapse. The lapses committed by the petitioners/applicants and condoned at their request should have put the petitioners on alert and dissuaded the petitioners from repeating omissions. The petitioners/applicants on the other hand have ignored to take any lesson. The lapses committed by the petitioners/applicants and condoned at their request should have put the petitioners on alert and dissuaded the petitioners from repeating omissions. The petitioners/applicants on the other hand have ignored to take any lesson. In the circumstances condoning delay of about four years in filing an application for restoration of the Revision Petition shall amount to rewarding the petitioners/applicants for their gross and inexplicable negligence, more so when the petitioners/applicants have failed to show any sufficient case to explain the delay. It needs to be recalled that the only cause pleaded in the application for condoning delay of four years is that the counsel for the petitioners/applicants did not inform the petitioners regarding the proceedings in the matter and the petitioners/applicants have been kept in dark till new counsel was appointed. The ground urged in absence of any material to lend support does not inspire confidence, in particular against the back drop of conduct of petitioners during last two decades. Even if the argument of learned counsel for the petitioners/applicants that Art. 181 of the Limitation Act is attracted in the matter in question and that the application for restoration of Civil Revision has thus been made after only 317 days is accepted, yet the complexion of the matter remains unchanged. What is relevant is the sufficiency of the cause and not the length of the delay. Once it is held that the applicants/petitioners have been guilty of deliberate and willful delay, mere fact that such delay is only of 317 days does not brighten-up chances of the applicants/petitioners case for condonation of delay. All other arguments are made in context of the merits of the Civil Revision and not the condonation of delay application. 15. The anxiety shown by the Counsel for the applicants/ petitioners that because of inefficiency and negligence of the functionaries of the State Government the public interest is likely to be prejudicial warrants a comment on the rights/obligations that flow out of the decree. The Trial Court vide its decree as modified vide order dated 4.7.1992 has declared the respondent as "CAMA" (Cultivator) of the suit land. An etymological study of word "CAMA" becomes necessary. The word "CAMA" (spelt as "KAMA") means agricultural labourer paid for the work performed as such on agricultural land in cash or kind. The Trial Court vide its decree as modified vide order dated 4.7.1992 has declared the respondent as "CAMA" (Cultivator) of the suit land. An etymological study of word "CAMA" becomes necessary. The word "CAMA" (spelt as "KAMA") means agricultural labourer paid for the work performed as such on agricultural land in cash or kind. The expression "CAMA" is distinct and different from the expression "tenant" as defined under the Tenancy Act. Land Revenue Act, Agrarian Reforms or other such laws governing the subject. In some cases an estate holder like a Pardanishin lady, a Government officer, a business man or even a Government Department like Rakhs and Farms Department, would not herself/himself/itself pers orally cultivate the land neither hand it over to any person to act as a "tenant" (Muzariya) to cultivate the land thereby creating a tenancy in his favour, but cultivate the land through labourers/workers. The estate holder thus retained the possession of the land. The arrangement would not result in any tenancy nor would rights of tenant flow from such arrangement in favour of the worker or labourer. The local Patwari at the time of preparation of annual records or Girdawari would go to the spot and record the same to be in self possession/cultivation of the estate holder, under tenancy of a person or being cultivated by the estate holder through agriculture labourers/ workers or "CAMA", as per the position obtaining on spot. In the last case because the entry would be "bazaria Cama" i.e. "through workers" the expression obviously would not result in conferment of any possessory or other rights in favour of the workers (CAMA) employed to cultivate the land. The reason is simple and straight. What would be relevant is that the estate holder was cultivating the land through workers/labourers and not who was the worker or labourer because the estate holder would employ different workers/labours from time to time. The expression "through labourers" (Bazaria Cama) thus refers to the mode and manner in which agriculture land is cultivated by the estate holder and not to the person who cultivates it. The respondent in the present case in his own wisdom sought a decree to be declared as a "CAMA" and the Court at the request of the respondent vide judgment and decree dated 31.8.1988 read with Order dated 4.7.1992 merely declared the respondent as "CAMA" of the land in question. The respondent in the present case in his own wisdom sought a decree to be declared as a "CAMA" and the Court at the request of the respondent vide judgment and decree dated 31.8.1988 read with Order dated 4.7.1992 merely declared the respondent as "CAMA" of the land in question. The expression "cultivator" after the word "CAMA" is an effort by the Court to translate the expression "CAMA" in English and does not in any manner change the import and complexion of the expression "CAMA". This was made clear by the Executing Court in its order dated 30.6.1997. The respondent has not questioned the order of the Executing Court dated 30.6.1997 or earlier order dated 4.7.1992, and the orders are binding on the respondents. The petitioners thus in order to deny the respondents any undue or unwarranted benefit under decree dated 31.8.1981 as modified by order dated 4.7.1992 may project its case as regards true meaning and import of expressions as "CAMA" and rights if any flowing out of the status of "CAMA", before the Executing Court or any other authority, that has to do anything with the execution of the decree. So viewed, the application is accordingly dismissed. The restoration application being time bared is also dismissed.