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2012 DIGILAW 19 (JK)

State of J&K & Ors. v. Abdul Khaliq Sheikh

2012-01-31

HASNAIN MASSODI

body2012
1. Shri Abdul Khaliq Sheikh S/o Mohd. Sultan Sheikh R/o Akura Mattan Tehsil and District Anantnag - respondent herein, appointed as Follower in J&K Police Department vide order dated 2nd October, 1999, was on the ground of unauthorised absence, discharged from service vide order No. ESTT/D-2/2000/26676-81 dated 30.11.2000, with effect from 28.10.2000. Aggrieved with the discharge order, respondent filed a suit in the Court of Sub Judge/Chief Judicial Magistrate, Anantnag on 08.10.2001. The suit registered as No. 245 (Numbri) was decreed on 9th December, 2003. 2. The Trial Court judgment and decree dated 09.12.2003, was questioned by the appellants — defendants before the Trial Court, through medium of an appeal in the Court of Principal District Judge, Anantnag. Since the appeal was field 182 days after the period prescribed, the appellants filed an application for condonation of delay. The appellants attributed delay to the cumbersome official procedure involved in according approval to filing of the appeal and insisted that delay was neither intentional nor deliberate. The First Appellate Court, however, was not impressed by the cause shown by the appellants and dismissed the application for condonation of delay. Resultantly, the appeal was also dismissed as barred by limitation. 3. The First Appellate Court order dated 26th April, 2005, whereby the application for condonation of delay was dismissed and so was the First Civil Appeal filed against the Trial Court judgment and decree dated 09.12.2003, is questioned in the proceedings on hand styled as "Civil Second Appeal". 4. The First Appellate Court order is primarily assailed on the grounds that the First Appellate Court while dealing with the application of condonation of delay did not touch or consider the merits of the appeal. It is urged that the Trial Court judgment and decree are liable to be set aside, inasmuch as the Trial Court unmindful of the 'settled law on the subject erroneously set aside the discharge order oblivious of the settled legal position that Rule 187 of the Jammu and Kashmir Police Rules, 1960 providing for discharge of a Police Official does not require any enquiry to be made before the order discharging a Police Officer. The First Appellate Court is also said to have failed to appreciate that the rules of limitation are not to be applied with the same vigour where the Government is a litigant as these are applied in case of private litigant. The First Appellate Court is also said to have failed to appreciate that the rules of limitation are not to be applied with the same vigour where the Government is a litigant as these are applied in case of private litigant. It is pleaded that the Rules of Limita tion are to be applied in a liberal manner where the Government or the Exchequer may suffer because of the lapses attributable to officialdom and red-tapism. 5. I have gone through the memorandum of appeal and the record available on the file. I have heard counsel for the parties. 6. It is pertinent to point out at the outset that the Civil Second Appeal has been admitted to hearing without recording satisfaction that the case involves a substantial question(s) of law as required under Section 100 CPC and without formulating substantial question(s) of law as required under Order 42 Rule 2 Civil Procedure Code. It is clear by now that the First Appellate Court did not entertain the Civil First Appeal, as in opinion of the Court the appeal was not filed within the prescribed time. The Court rejected an application under Section 5 of J&K Limitation Act for condonation of delay in filing the appeal. The appeal resultantly was dismissed as time barred. The First Appellate Court had, in the circumstances, no occasion to deal with the judgment and decree sought to be impugned in the Civil First Appeal on merits and did not concur with the findings returned by the Trial Court on the issues framed in the suit and the end result of the suit. 7. The First Appellate Court had, in the circumstances, no occasion to deal with the judgment and decree sought to be impugned in the Civil First Appeal on merits and did not concur with the findings returned by the Trial Court on the issues framed in the suit and the end result of the suit. 7. Would it be permissible to treat the First Appellate Court order dated 26th April, 2005, whereby the application for condonation of delay has been dismissed, as a judgment of concurrence in terms of the Order 42 Rule 2 CPC read with Section 100 CPC, when the First Appellate Court did not at all look into the judgment sought to be impugned and did not go through the evidence produced by the parties, so as to assess for itself whether the conclusion drawn could be rationally and reasonably arrived at on an objective and dispassionate appreciation of the evidence brought on record In case the First Appellate Court order dismissing the condonation of delay application and resultantly holding the Civil First Appeal time barred is taken as an Order not appealable in terms of Order 42 Civil Procedure Code, is such an Order revisable under Section 115 CPC, are the questions that call for answer. It may be very well argued that in the given circumstances, no Second Appeal is competent inasmuch as there has been no decision in First Appeal and the appeal styled as "Civil Second Appeal" is essentially an appeal against an Order refusing to condone the delay against, which no Second Appeal is provided. The argument may sound somewhat attractive but cannot stand close scrutiny. 8. In case of Appeals from the original decrees, the Appellate Court, we commonly call as First Appellate Court in terms of Order 41 Rule 32, has four options to deal with the appeal. It may confirm the decree appealed against, vary or reverse it or in case, parties agreed to give the decree appealed against a particular form, to render judgment in accordance with the form so agreed to by the parties. Once the First Appellate Court, is approached by a party aggrieved with the original decree, with a time barred appeal accompanying an application for condonation of delay and the First Appellate Court declines to excuse delay, the First Appellate Court cannot be said to have reversed or varied the decree. Once the First Appellate Court, is approached by a party aggrieved with the original decree, with a time barred appeal accompanying an application for condonation of delay and the First Appellate Court declines to excuse delay, the First Appellate Court cannot be said to have reversed or varied the decree. Even if, the First Appellate Court by refusing to condone the delay cannot be'technically said to have confirmed the decree, still it would be a case where there is no appeal against the original decree. The order of the First Appellate Court, thus, would have character of a judgment of affirmance and a Second Appeal would be competent under order 42 Civil Procedure Code. It would be apt to reproduce following observations made by "Patna High Court in H.G. Pereira v. East Indian Railway" AIR 1926 Pat 102: "We quite agree that if we had refused the application made to us under Section 5 of the Limitation Act, that refusal would have operated as a dismissal of the appeal, and, subject to the other provision of the section, the order would be appealable, not indeed as a final order but as 'a decree passed on appeal". 9. It would be equally profitable to extract following from "State of Rajasthan and anr. v. Ramnath and ors." 1972 WLN 1111: "In our opinion because the appeals before us were barred by time the judgment of the court below remained unvaried unreversed and the judgments of the High Court, although not on merits were those of affirmance & here we may recall the powers of an appellate court as contained, in Order 41 Rules 32 C.P.C. They are primarily three, viz. of confirmation, variation or reversal. Since the decree of the trial court were not varied or reversed they were clearly confirmed by process of elimination. Confirmation is equivalent to affirmance." 10. What emerges from the above discussions is that a Civil Second Appeal would be competent under Order 42 CPC against an order of the First Appellate Court declining to excuse delay in filing First Appeal and holding the Civil First Appeal barred by limitation. Having said so, let us go to the merits of the case. 11. What emerges from the above discussions is that a Civil Second Appeal would be competent under Order 42 CPC against an order of the First Appellate Court declining to excuse delay in filing First Appeal and holding the Civil First Appeal barred by limitation. Having said so, let us go to the merits of the case. 11. The First Appellate Court on consideration of the material brought on the file and after hearing the parties has taken the view that no sufficient cause was made out by the appellants as would warrant condonation of delay of a little more than six months in filing Civil First Appeal. The appellant, in order to succeed in the Civil Second Appeal, is to satisfy the Court that the appeal raises a substantial question of law. The litmus test is to be applied in such cases to see whether the appeal raises a debatable question of law not settled by the superior Courts or the question which is of importance generally or affects the rights of the parties. The question of sufficiency of cause for delay in filing the Civil First Miscellaneous Appeal can in no circumstances be treated as a substantial question of law not dealt with by the superior Courts and already settled. 12. Viewed thus, the Civil Second Appeal fails and is accordingly, dismissed.