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2017 DIGILAW 1062 (JK)

Ruqaya Rasool v. Mumtaz Ahmad Shah

2017-12-13

ALI MOHD.MAGREY

body2017
JUDGMENT : ALI MOHD. MAGREY, J. 1. The petitioner/decree holder, being aggrieved of the order dated 23rd of April, 2014, passed by the Court of learned 1st Additional Sessions Judge, Srinagar, in an application filed by the respondent No. 1 herein seeking condonation of delay in filing the appeal against the judgment and decree dated 23rd of December, 1994, challenges the same in the instant revision petition on the grounds detailed out in the petition. 2. The brief facts leading to the filing of the revision petition in hand are that the petitioner and the respondent No. 2 herein, i.e. the sister of the petitioner, had filed a suit for declaration and injunction against their father, namely, Ghulam Rasool Shah, before the Judge Small Causes Court, Srinagar, which, on adjudication, has been decreed in terms of judgment and decree dated 23rd of December, 1994. Resultantly, the decreed property as claimed is in possession of the petitioner and the respondent No. 2 herein. The respondent No. 1 herein, namely, Mumtaz Ahmad Shah, as stated, having got the knowledge of the decree and judgment in the month of June, 2011, had immediately applied for a certified copy of the judgment and decree, which, as stated, was made available to him on the 7th day of July, 2011. Thereafter, the respondent No. 1 herein filed appeal against the judgment and decree dated 23rd of December, 1994, passed by the Court of learned Judge Small Causes, Srinagar. Alongside, the appeal, the applicant/appellant/respondent No. 1 herein also filed an application seeking condonation of delay in filing the appeal. The cause supplied with reference to seeking condonation of delay has reference to paragraph Nos. 6 and 7 of the application so filed before the Appellate Court and, same being relevant, are taken note of: “6. That the present applicant was not made a party in the basic suit as such is not aware about the passing of the decree and could not challenge the decree in the prescribed time period. The applicant came to know about the passing of the decree some days back when the applicant approached the non-applicant No. 2 about the settlement of the various properties left behind by the deceased father of the applicant. The non-applicant 2 thereafter showed the papers regarding the passing of the impugned decree. The applicant came to know about the passing of the decree some days back when the applicant approached the non-applicant No. 2 about the settlement of the various properties left behind by the deceased father of the applicant. The non-applicant 2 thereafter showed the papers regarding the passing of the impugned decree. The applicant there and then noted down the date of passing of the decree and the court which has passed the decree. 7. That immediately thereafter the applicant applied for the issuance of the attested copy of the impugned order and the decree on 29-06-2011 and the copy of the impugned order was issued to the applicant on 07-07-2011 thereafter the appellant consulted a lawyer and it took seven days for the lawyer to draft the appeal and in the mean time the appellant also got other documents to brief the lawyer about the other facts of the case and the present appeal as such is well within time.” On notice, the non-applicant/petitioner herein filed objections to the condonation of delay application, objecting the allowing of the said application on the ground that no sufficient cause has been shown with reference to the huge delay of almost 17 years in filing the appeal. Paragraph No. 3 of the objections filed by the non-applicant/petitioner herein, being relevant, is taken note of: “3. That it is humbly submitted that the allegations of fraud levelled by the applicant are totally baseless and false. It does not hold good for the applicant to level such allegations against his esteemed father who retired as District Judge. No ground tenable under law is raised by the applicant, therefore, the application deserves to be dismissed. On consideration of the matter and after hearing the learned counsel for the parties and considering the material placed on record, the Appellate Court, in terms of order dated 23rd of April, 2014, allowed the application and condoned the delay in filing the appeal against the judgment and decree dated 23rd of December, 1994, passed by the Court of learned Judge Small Causes, Srinagar.” 3. Heard the learned counsel for the parties, considered the matter and perused the record. 4. Mr. Heard the learned counsel for the parties, considered the matter and perused the record. 4. Mr. Ishfaq Muzamil Nehvi, the learned counsel appearing on behalf of the petitioner, has, while strengthening the grounds taken in the petition, made reference to the application of the applicant/appellant/respondent No. 1 herein, filed seeking condonation of delay and submitted that the application is not only vague, but also bereft of any material which would come within the contours of ‘sufficient cause’ in seeking the huge condonation of delay, i.e. almost 17 years, in filing the appeal. The learned counsel further submits that, admittedly, the petitioner and the respondent No. 2 herein are in possession of the property before passing of the judgment and decree dated 23rd of December, 1994, and, the applicant/appellant/respondent No. 1 herein had the knowledge about the same in view of the fact that the holding of the possession, as an owner of the property, has reference to the settlement arrived at between the petitioner and his father and that the knowledge of the said settlement is with the applicant/appellant/respondent No. 1 herein much before the judgment and decree is passed and, continues to be so even after the judgment and decree is passed. He further submits that the respondent No. 1 herein is only adopting the tactics of approaching the Police, Courts of law, etc. only to harass the petitioner as is evident from his approach adopted in not only filing the appeal, but also by filing a civil suit on the same subject. 5. Mr. M.Y. Bhat, the learned counsel appearing on behalf of the respondent No. 1, submits that sufficient cause is supplied with reference to providing full details of the knowledge gained by the respondent No. 1 herein of the judgment and decree and the immediate steps taken thereafter. He further reiterates the grounds taken in the application seeking condonation of delay. 6. Perusal of the application filed seeking condonation of delay reveals that the same mostly concentrates on the approach adopted by the petitioner herein in obtaining the decree by a fraudulent means, but the cause reflected and detailed out in Paragraph Nos. 6 and 7 of the application, as detailed out hereinabove, is vague. 6. Perusal of the application filed seeking condonation of delay reveals that the same mostly concentrates on the approach adopted by the petitioner herein in obtaining the decree by a fraudulent means, but the cause reflected and detailed out in Paragraph Nos. 6 and 7 of the application, as detailed out hereinabove, is vague. No full details are provided to the Court as to how and when the applicant/appellant/respondent No. 1 herein got the knowledge of the judgment and decree only in the month of June 2011, when, admittedly, the petitioner is in possession of the property since long. The learned Appellate Court also, while deciding the application, has formed his opinion in allowing the application seeking condonation of delay in filing the appeal merely on the ground that the applicant/appellant/ respondent No. 1 herein got the knowledge of the judgment and decree only few days before filing of the appeal. No exercise is undertaken with reference to seeking evidence on the said contention raised by the applicant/appellant/respondent No. 1 herein vis-a-vis having the knowledge of the judgment and decree just before few days of filing the appeal. 7. I am of the considered opinion that the Court below has decided the application in hot-haste, without seeking any evidence with reference to the contention of the applicant/ appellant/respondent No. 1 vis-a-vis the knowledge of the applicant/appellant/respondent No. 1 herein about the judgment and decree and the source of such knowledge with supportive evidence and material. Merely supplying the cause of having the knowledge before few days of filing the appeal is not sufficient cause for condoning the huge delay of almost 17 years, instead the Court had the bounden duty to record satisfaction with regard to such sufficient cause shown. Needless to mention that the learned Appellate Court has only noticed two paragraphs of the application, as detailed out hereinabove, and formed the opinion that the applicant/appellant/respondent No. 1 herein has shown sufficient cause for condonation of delay in filing the appeal, which, in my opinion, is not enough and, as per well settled principles of law, the onus of showing the sufficient cause is on the applicant/appellant/respondent No. 1 herein. 8. On the subject of Courts arriving at satisfaction with reference to ‘sufficient cause’ the law is no more res integra. 8. On the subject of Courts arriving at satisfaction with reference to ‘sufficient cause’ the law is no more res integra. Sufficient cause has been explained and interpreted not only by the legal verbatim of dictionary meaning, but also by the judgments of the various Courts, including the Supreme Court of India. Reference, in this connection, is made to the decision of the Apex Court rendered in the case of Balwant Singh vs. Jagdish Singh and Others, AIR 2010 SC 3043 , paragraph Nos. 13 and 15 being relevant, as such, are reproduced hereunder verbatim et literatim: “13. As held by this Court in the case of Mithailal Dalsangar Singh and Others vs. Annabai Devram Kini and Others, AIR 2003 SC 4244 : 2003 AIR SCW 4878, the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term ‘sufficient cause’ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of ‘reasonableness’ as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona-fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona-fide and based upon true and plausible explanations, as well as reflect normal behavior of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar vs. Kameshwar Prasad Singh, (2000) 9 SCC 94 : AIR 2000 SC 2306 : 2000 AIR SCW 2389, this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others vs. Rewa Coalfields Ltd. AIR 1962 SC 361 , this Court took the view: “7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna vs. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona-fides may fall for consideration....” 15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) by LRs. and Others, AIR 2009 SC (Supp) 886 : 2008 AIR SCW 6025. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) by LRs. and Others, AIR 2009 SC (Supp) 886 : 2008 AIR SCW 6025. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:- “13 (i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case and the type of case. The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona-fides, deliberate inaction or negligence on the part of the appellant.” (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. (v) Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” We may also notice here that this judgment had been followed with approval by an equi-bench of this Court in the case of Katari Suryanarayana and Others vs. Koppisetti Subba Rao and Others, AIR 2009 SC 2907 : 2009 AIR SCW 4640.” 9. In the above factual background, coupled with the law as laid down by the Apex Court and discussed hereinabove, this revision petition is allowed and the order dated 23rd of April, 2014, passed by the Court of learned 1st Additional Sessions, Judge, Srinagar, on the application filed by the applicant/appellant/respondent No. 1 herein, seeking condonation of delay, is set aside. However, the Court below is directed to consider the application filed for condonation of delay afresh, after seeking supplementary grounds with supportive evidence/material and decide the same on merits. 10. Registry to send down the trial Court records alongwith a copy of this order. 11. Parties shall appear before the learned Appellate Court on 19th of December, 2017. 12. Revision petition alongwith connected M.P. disposed of as above.