Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 463 (JK)

Khair-ud-Din & Son v. Union Of India

2010-08-20

J.P.Singh, MOHAMMAD YAQOOB MIR

body2010
Per Mohammad Yaqoob Mir, J. 1. Delay of 737 days in preferring the LPA is sought to be condoned. The precondition for such condonation is that the Court shall be satisfied vis-a-vis "sufficient cause" which has prevented the seeker thereof in presenting the appeal in time. 2. The word "sufficient cause" as employed in Section 5 of the Limitation Act has to be construed liberally so as to advance cause of justice. Liberal construction is controlled by one situation i.e. total slackness/indolence shall not be attributable to the seeker thereof. It is trite that when substantial justice and technical justice are pitted against each other, it is the former which has to prevail. It is also settled that the worst that can happen by condoning the delay is that the matter will get decided on its merits. 3. Noticing of the case with precision shall be advantageous: "The applicant (appellant) firm was engaged in the manufacture of BL/ML guns and gun cartridges in terms of License No.3 dated 17th of Baisakh 2007 (Bikrami). As per the terms of the license the limit to manufacture guns and gun cartridges was 400 BL guns, 200 ML guns and 2000 gun cartridges at a time. Later on the said license was replaced by license No.CS(PS)-15/63-MFG where-under the limit for manufacturing of guns was fixed at 600 BL/ML guns only per annum instead of 600 BL/ML guns per month. Thereafter the quota was enhanced by 20%. The applicant (appellant) seem to have represented before the authorities concerned for correcting the position vis-a-vis the limit but failing to get any response filed the writ, petition praying therein that the quota of manufacturing 400 BL Guns, 200 ML guns at a time be restored and to increase 20% manufacturing quota in terms of the policy of the Central Government as contained in order No.V-11018/2/91-Arms(Pt.) dated 1.10.1991. The writ petition stand dismissed by virtue of impugned judgment dated 31st December, 2007. The applicant (appellant) moved the motion for review of the said judgment which too was dismissed vide order dated 13.11.2009". 4. It is contended by the learned counsel that in effect there is no delay as the time spent in pursuing the review proceedings, which remained pending for more than one year, has to be excluded while computing the period of limitation. 4. It is contended by the learned counsel that in effect there is no delay as the time spent in pursuing the review proceedings, which remained pending for more than one year, has to be excluded while computing the period of limitation. In addition it is contended that the applicant (appellant) despite being approximately 70 years old has acted with diligence. No intentional or deliberate delay is attributable to him as otherwise same would work against his interests. No one would like to act against his own interests. Therefore, delay in preferring the LPA is self explained, may be condoned. 5. Learned counsel for the respondents opposed the condonation on the count that there is a considerable delay which is not properly explained. 6. While considering the submissions as well as the position as stated hereinabove, there is no slackness attributable to the applicant (appellant) so as to disentitle him from claiming the condonation. The applicant (appellant) in fact has, with all diligence, pursued the review proceedings which have remained pending for more than one year, so that period has to be excluded from computation. In this connection reliance has been rightly placed on the judgment rendered by Hon’ble Apex Court in the case captioned R.B. Ramlingam v. R.B. Bhuvaneshwari reported in 2009(1) Supreme 674 . 7. In the referred judgment the question arose as to whether the prosecution of a review application would be a "sufficient cause" for not filing Special Leave Petition in time for the purposes of Section 5 of the Limitation Act, 1963. It has been held: "The test of "sufficient cause" is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of Limitation has left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such." Further it has been held: "Therefore, it cannot be stated as a proposition per se that the prosecution of Review Proceedings would not be a sufficient cause at all for purposes of Section 5 of the Limitation Act, 1963." 8. Each case spells out a unique experience to be dealt with by the Court as such." Further it has been held: "Therefore, it cannot be stated as a proposition per se that the prosecution of Review Proceedings would not be a sufficient cause at all for purposes of Section 5 of the Limitation Act, 1963." 8. What emerges is that in the peculiar facts and circumstances, Court has to derive satisfaction as to whether the delay is properly explained and the true test is as to whether the applicant appellant) has acted with reasonable diligence. 9. The applicant (appellant) for the stated reasons seem to have acted with diligence. The period spent in prosecuting the review petition has to be excluded from computing the period of limitation as permissible in terms of Section 12 of the Limitation Act. Excluding that period then remains a delay of approximately two months which is otherwise also explained as the applicant (appellant) being a old person had to collect the copies, take the legal advice and then to prepare the case, as such, delay is explained. 10. The application for the stated reasons is accepted. Delay is condoned. Let LPA be listed for admission in the next available cause list.