State of J&K & Ors. v. Mukhtar Ahmad Nathkhan & Ors.
2011-02-04
MOHAMMAD YAQOOB MIR
body2011
DigiLaw.ai
1. Aggrieved by the order dated 31/3/2006 passed by the Court of Principal District Judge, Budgam, where-under application seeking condonation of delay in preferring the appeal has been dismissed, the revision petition is proposed to be filed after a considerable delay of about three years (i.e. 1043 days), so again instant application for condonation of delay. 2. For condonation seeker has to show a "sufficient cause" for inaction. The word "sufficient cause" as employed in Section 5 of the Limitation Act has to be liberally construed so that substantial justice may not become the casualty but for such liberal construction the exercise of discretion is not so unfettered so as to render the object of limitation laws as redundant or a dead letter. Seeker of the condonation of delay cannot claim immunity when with impunity indolence is exhibited. Every action has a limit and in case limits are crossed, that would attract the applicability of proverb "excess of everything is bad". 3. Law of limitation at time has to be applied even if it may operate harshly. Instant case presents a worst example of casualness and indolence on the part of seeker of condonation of delay. 4. Confronted with the facts and circumstances vis-a-vis indolence/lethargic approach, learned counsel for the petitioners, with all vehemence at his command, would contend that the delay is not intentional or deliberate but is attributable to the administrative reasons and departmental wrangles. The case is strong on merits. In support thereof, placed reliance on the judgments reported in 2007(1) SLJ 348 and 2009(1) SLJ 146. 5. In opposition learned counsel for the respondent No. 1 painfully submitted that the respondent No. 1 is a fire sufferer and has been victimized by petitioners for none of his fault, further added that no explanation has been tendered for indolence exhibited from time to time in pursuing the proceedings, both in the trial court, appellate court and now in the Revisional Court. In support of his contention, learned counsel relied on the judgment reported in AIR 1998 SC 2276 , 2000 S.L.J. 619, 2002(1) S.L.J. 31 (DB), 2003(11) S.L.J. 467, 2003(11) S.L.J. 459 and 2004(1) S.L.J. 247. 6.
In support of his contention, learned counsel relied on the judgment reported in AIR 1998 SC 2276 , 2000 S.L.J. 619, 2002(1) S.L.J. 31 (DB), 2003(11) S.L.J. 467, 2003(11) S.L.J. 459 and 2004(1) S.L.J. 247. 6. From the records what emerges is that in the devastating fire in the township of Cherar-i-Sharief scores of residential houses and other buildings gutted on 8th/9th of May, 1995 which included the two strayed residential house of the respondent No. 1. So was the intensity of the destruction, the Government was constrained to constitute a High Level Committee to look into the cases of the sufferers. The said Committee later on was wound up but the grievance of the respondent No. 1 was not redressed which prompted him to file a suit for declaration and permanent injunction before the Court of Sub Judge, Budgam wherein declaration was sought to the effect that the respondent No. 1 (plaintiff) had a two storeyed tin roofed residential house measuring 17 x 20 situated at Cherar-i-sharief Tehsil Chadoora District Budgam. 7. On the respective pleadings of both the parties as many as 11 issues were framed and the suit was decreed by holding the respondent No. 1 (plaintiff) to be owner in possession of two storeyed house situated in ward No.4 N.A.C Cherar-i-Sharief along with land measuring 17'x21' under and appurtenant to the said house which gutted in the fire incident in the year 1995, thus respondent was held entitled to receive relief/ex-gralia and other incentives/packages evolved by the Government for the relief and rehabilitation of the fire sufferers. Further petitioners (defendants) were directed to make payment of the ex-gratia relief and other packages to the respondent forthwith. 8. The said suit was decreed after full contest but the petitioners have Been very casual. They had protracted the matter by not producing witnesses during the trial. Learned District Judge while recording judgment vis-a-vis condonation has noticed therein that the petitioners right from 11th June, 2001 till 6th of June, 2002 had been given numerous opportunities for producing the evidence but after availing all these opportunities no evidence was produced.
They had protracted the matter by not producing witnesses during the trial. Learned District Judge while recording judgment vis-a-vis condonation has noticed therein that the petitioners right from 11th June, 2001 till 6th of June, 2002 had been given numerous opportunities for producing the evidence but after availing all these opportunities no evidence was produced. Therefore, the contention of learned counsel for the petitioners that there is merit in the case which will become casualty if delay is not condoned, is simply a submission for arguments sake, finding returned on the issues cannot be interfered with when the petitioners(defendants) have failed to produce any evidence even vis-a-vis issues onus of which was upon the petitioners. As against it respondent No. 1 has fully proved the position of his house to have gutted in the fire incident. 9. The petitioners when were contesting the suit did not bother to file the appeal against the judgment of learned Sub Judge within the prescribed period of limitation so learned District Judge has noticed two important points i.e. the judgment of the trial court is dated 31st of August, 2002, the petitioners had not applied for getting copy of the judgment and decree until expiry of 10 months and thereafter after getting the copy it took them five months more to present the appeal with the application for condonation of delay. This is noticed only to show as to how the petitioners have been totally indolent, based on which learned appellate court has rejected the application for condonation of delay. 10. The order passed by learned District Judge on 31.3.2006 is passed in presence of learned counsel for the parties and learned counsel for the petitioners had strongly attempted to get the delay condoned by making various submissions.
10. The order passed by learned District Judge on 31.3.2006 is passed in presence of learned counsel for the parties and learned counsel for the petitioners had strongly attempted to get the delay condoned by making various submissions. When it is so, the petitioners should have been more serious in further proceeding i.e. if they were really serious to challenge the order of learned District Judge or to challenge the basic judgment, they should have acted with promptitude but instead what they have done, they have remained relaxed for round about three years i.e. for 1043 days and now they have come up with a revision against the order of District Judge dated 31.3.2006 in the year 2009 which in clear terms would suggest that the petitioners have taken the law of limitation for granted and have perhaps taken the word "sufficient cause" as employed in Section 5 of the Limitation Act to be a word which can be stretched at any time at sweet will as if law of limitation is simply ambitious book. It has to be made clear that condonation of delay has to be a rule and refusal as an exception and that exception is the casual and indolent approach and the delay beyond proportions. 11. Every case has to be judged on its own facts and features. Delay is condonable and has to be liberally condoned so as to pave way for doing substantial justice but it is not to be stretched much to the annoyance/discomfort and sufferance of the other party. 12. It shall be quite apt to quote para 6 of the judgment reported in AIR 1998 SC 2276 : "6. 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. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous first Appeal shall stand dismissed as barred by time. No costs". 13.
The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous first Appeal shall stand dismissed as barred by time. No costs". 13. The Division Bench of this Court in the judgment reported in 2002(1) S. L. J. 31 has held: "We are not satisfied that in the facts and circumstances of the case, any explanation, much less reasonable or satisfactory one, has been offered by the applicant/appellant in the application for the condonation of the inordinate delay of 177 days. Period of limitation so prescribed by the statute cannot be extended by the court on equitable ground. The discretion to be exercised has to be either proper or judicious for condoning the delay". 14. The application for condonation as filed for condoning the delay in preferring the revision, on birds eye view, would indicate that no explanation, what to speak of plausible explanation, has been tendered. All that has been said is that delay is not intentional or deliberate and same is attributable to administrative reasons and departmental wrangles. This submission definitely would have a prevailing force in case due diligence would have been exhibited. No cause is forthcoming which would indicate and satisfy the Court that there were compelling reasons which prevented the petitioners in preferring the revision in time. Naked words "administrative reasons" and "departmental wrangles" are routine in its operation which cannot be operated harshly against the interests of other party who is a fire sufferer. 15. While making reference to the judgment of the trial court, what would emerge is that the respondent, a fire sufferer, has been held to be owner of two storeyed house which gutted in the fire incident and the merit position is supported by a communication addressed by Deputy Commissioner, Bud gam to the Divisional Commissioner, Kashmir under No.DCB/Relief/Char/09/1858-60 dated 25.3.2009, wherein, among other things, it is mentioned that payment of Rs.3.50/lacs instead of Rs.4.40/lacs and a plot of land shall be formally considered in favour of respondent and one other person by way of out of court settlement. This also indicates as to what is the position of merit of the case and the sufferance of the respondent. 16.
This also indicates as to what is the position of merit of the case and the sufferance of the respondent. 16. To condone the delay in such circumstances and facts as narrated herein-above would not only amount to declaring the law of limitation as redundant but would also amount to making the fire sufferer victim to suffer indefinitely for none of his fault which will be totally travesty of justice which the Court cannot afford to allow. 17. The application for condonation of delay being totally devoid of merit is dismissed with costs of Rs. 10,000/payable by the petitioners to the respondent No. 1. 18. Necessary corollary of the dismissal of application for condonation of delay is that the revision petition is dismissed as being hopelessly time barred.