Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 1091 (JK)

Mehraj-ud-Din Wani v. Farooq Ahmad Mir

2017-12-22

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : MOHAMMAD YAQOOB MIR, J. 1. Delay of 357 days in preferring the appeal is sought to be condoned. Whether for condoning the delay, sufficient cause is available or not is required to be looked into. Background of the case: (i) Suit for recovery of Rs. 6/- lacs (rupees six lacs) along with interest, captioned Farooq Ahmad Mir vs. Mehraj-ud-din Wani under Order XXXVII CPC had been filed on 05.02.2009 which has been decreed on 29.11.2013. (ii) Perusal of the record reveals that the appellant had executed Hundi (promissory note) for the amount borrowed by him. When the amount was not paid, a notice of demand was served on 10.11.2008. Non payment gave rise for filing the suit. (iii) On appearance, appellant (defendant) sought leave to defend the suit which was dismissed on 16.03.2009 and the suit decreed on 02.04.2009. The judgment and decree dated 02.04.2009 was assailed by medium of Civil Revision Petition No. 53/2009 successfully as the judgment was set aside by this court vide its decision dated 26.10.2009. It is thereafter, trial court granted leave to defend vide order dated 21.09.2013. (iv) The appellant (defendant) filed written statement on 04.10.2013. Thereafter the suit was fixed for recording preliminary statement of the parties in accordance with Order 10 CPC. The appellant (defendant) opted to remain absent, as a result whereof was set in ex-parte. (v) The plaintiff led the evidence and finally suit has been decreed in ex-parte vide judgment dated 29.11.2013. For assailing the same, appellant has chosen to file the appeal but after a delay of 357 days. (vi) It is only when in execution proceedings, appellant noticed coercive measures being taken, he filed an application on 07.03.2014 for setting aside ex-parte judgment and decree dated 29.11.2013. Same has been dismissed on 14.08.2014. (vii) In connection with execution proceedings, when appellant was taken into custody, he was released on an assurance for arranging and paying the money. Again on 25.03.2015, executing court granted him time which he has not availed, instead has chosen to file the appeal. 2. Sufficient cause for condoning the delay has to be liberally construed so as to advance the cause of justice. Again on 25.03.2015, executing court granted him time which he has not availed, instead has chosen to file the appeal. 2. Sufficient cause for condoning the delay has to be liberally construed so as to advance the cause of justice. It is well settled that when technical and substantial justice are pitted against each other, it is the later which has to be preferred but the same position is controlled by an important condition i.e. seeker of condonation of delay must not be indolent nor indolence must be attributable to him. When seeker is indolent, he cannot be given any concession and in case any such concession is given to him, that would render the object of limitation otiose. Law of limitation in such cases even if operates harshly, it has to be operated like that. In my view I am fortified by the judgment passed by the Hon'ble Apex Court in the case of P.K. Ramachandran vs. State of Kerala and Another, AIR 1998 SC 2276 . Para 6 is relevant to be quoted: “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.” 3. It shall also be advantageous to quote Para 32 to 34 of the judgment rendered by the Hon'ble Apex Court in the case of Balwant Singh (Dead) vs. Jagdish Singh and Others, (2010) 8 SCC 685 : “32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. 33. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. 33. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. 34. Liberal construction of the expression ‘sufficient cause’ is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect ‘sufficient cause’ as understood in law [Advanced Law Lexicon P. Ramanatha Aiyar, 2nd Edition, 1997].” 4. Indolent approach of the appellant in the suit proceedings which continued from the year 2009 to 2013 is quite clear and is also made clear by the facts and events ad noticed hereinabove. To condone the delay would be simply to arm an indolent seeker to prolong and stretch the suit proceedings indefinitely much to the disadvantage of the suitor (plaintiff). The ground projected in the application seeking condonation in the fact situation and the consequent events, as referred to above, pales into insignificance. To condone the delay would be simply to arm an indolent seeker to prolong and stretch the suit proceedings indefinitely much to the disadvantage of the suitor (plaintiff). The ground projected in the application seeking condonation in the fact situation and the consequent events, as referred to above, pales into insignificance. The only deducible conclusion from the facts and circumstances is that the appellant has attempted to drag the plaintiff indefinitely. Viewed from any angle, there is no scope for condoning the delay nor there is any sufficient cause available for so doing. 5. Viewed thus, application being without merit is dismissed. As a result whereof, appeal shall stand dismissed as barred by limitation. Copy of the judgment be sent to the trial court for information.