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2017 DIGILAW 208 (JK)

State of J&K v. Zahid Hayat

2017-04-21

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Delay of 414 days in preferring the appeal is sought to be condoned. Same is opposed by the learned counsel for the respondent, on the two counts: First, the delay has not been cogently explained, and, Second, there is no merit in the case of the appellants. Suit has been instituted on 08.08.2012, same has been decreed on 29.04.2014. Certified copy of the judgment and decree has been applied for on 18.06.2014 and same has been issued on 19.06.2014. Instant application seeking condonation has been filed on 18.08.2015. In the application for condonation of delay, following grounds have been projected: (1) The counsel for the judgment debtors (appellants) did not inform about passing of the judgment and decree. It was only when a notice in execution proceedings was served on 05.06.2015, knowledge dawned upon the appellants; (2) The delay is not intentional but due to procedural formalities which is imperative when State proposes to file appeal etc. (3) The government being impersonal machinery, decisions are taken at slow pace, therefore, certain amount of latitude is permissible, pragmatic approach is required to be adopted while considering case for condonation. 2. It is a fact that the delay has not been cogently explained. Record reveals that the appellants had caused appearance during trial of the suit and had filed the written statement. According to appellants, the engaged counsel did not inform them about passing of the judgment but there is no such affidavit on behalf of the counsel to the effect that no information about passing of judgment was sent to the appellants. In the application it is stated that it is execution proceedings when a notice was served upon them on 05.06.2015, they came to know about passing of the judgment but then they have applied for the certified copy on 18.06.2014, same has been issued to them on 19.06.2014. From 19.06.2014 till filing of application on 18.08.2015, no explanation is forthcoming. 3. Learned Dy. AG submit that devastative floods of 2014 also contributed to the delay, which, in effect, is without any substance because in the Kashmir Valley, devastative floods were witnessed in the month of September, 2014 and its impact ended in the month of December, 2014. Though nothing on such count is pleaded in the application but it is a fact of which judicial notice can be taken as is taken. Though nothing on such count is pleaded in the application but it is a fact of which judicial notice can be taken as is taken. Even if that period of three months is excluded, what can be the explanation for the period January, 2015 to August, 2015. 4. It is a fact that when State is the party, some latitude has to be given, which has also been settled in the judgment rendered by the Hon'ble Apex Court in the case of "State of Haryana v. Chandra Mani & Ors." ( AIR 1996 SC 1623 ). Para 10 is relevant to be quoted: "10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay. [Emphasis added] 5. It is also trite that when substantial justice and technical justice are pitted against each other, it is the substantial justice which has to be preferred. In the same background, coming to the merits of the case. It is quite evident that the respondent had filed a suit for being declared entitled to rentals of a three storeyed tin roofed concrete building having two parts situated at Kulgam. The said building, admittedly, was occupied by the defendants on rent basis. Rent had been assessed by the Chairman, District Rent Assessment Committee, Kulgam. The suit had been prayed to be decreed to the following effect: (a) A decree of declaration may be passed in favour of plaintiff and against the defendants, declaring therein that plaintiff is entitled to receive rent of Rs. 15,354/- per month i.e. Rs. Rent had been assessed by the Chairman, District Rent Assessment Committee, Kulgam. The suit had been prayed to be decreed to the following effect: (a) A decree of declaration may be passed in favour of plaintiff and against the defendants, declaring therein that plaintiff is entitled to receive rent of Rs. 15,354/- per month i.e. Rs. 10,5,55/- for part 'A' & Rupees 4,999/- for part 'B', total rupees 15,354/- from 15th of March, 2009 onwards as per the order of Chairman, Rent Assessment Committee, Kulgam, vide No. 39-DDCK of 2010, dated 11-02-2012 (Annexure-A) and as per the assessment of defendant No. 5 (Annexures C & D) of a building of plaintiff three storied concrete measuring 2917.13 Sft., situated at Kulgam occupied by the defendant No. 4 on rent basis from 1st of March, 2007, (b) Decree for recovery of an amount of rupees 3,14,160/- only may be passed as arrears of rent in favour of plaintiff and against the defendant No. 4 along with interest on such amount at the ruling rate from 15th of March, 2009 till 15th of July, 2010." 6. The defendants (appellants herein) have filed the written statement. Para 2 and 3 of the written statement are relevant to be quoted: "2. That para 3rd of the plaint is admitted to the extent that rent for the building was fixed by the Chairman Rent Assessment Committee. The defendant No. 4 is paying the rent to the plaintiff as per the orders made by the Rent Assessment Committee and nothing is outstanding till date as per the initial fixation of rent by the Chairman Rent Assessment Committee. 3. That para 4th of the plaint is admitted to the extent that re-assessment as per the rules has been made to the aforesaid building of the plaintiff. However, the rent could not be paid to the plaintiff as per the revised re-assessment due to non-availability of funds. As soon as the funds are made available, same shall be paid to the plaintiff. The defendant No. 4 has taken up the matter with higher authorities for release of rent in favour of the plaintiff. Rest para relating to filing of application by the plaintiff before the Chairman, Rent Assessment Committee is a matter of record." 7. Learned trial court noticing that the suit, in effect, is unconditionally admitted, has decreed the same vide detailed judgment dated 29.04.2014. 8. Rest para relating to filing of application by the plaintiff before the Chairman, Rent Assessment Committee is a matter of record." 7. Learned trial court noticing that the suit, in effect, is unconditionally admitted, has decreed the same vide detailed judgment dated 29.04.2014. 8. The parties as per their pleadings were not at variance. The admission of the defendants, as quoted above, is unconditional. When it is so, there could be no scope of success of the appeal. Without any just cause appeal has been proposed to be filed, that too after the prescribed period of limitation. Dragging and protraction unsubstantially, on one pretext or the other, has to be discouraged. 9. Viewing the case of the appellants for condonation of delay coupled with apparent merit position of the appeal, it would be totally a travesty of justice to condone the delay and then to hear the appeal only for the sake of hearing an appeal when the results, as per admission in the pleadings, is apparent. Viewed thus, delay of 414, having not been explained, is uncondonable. Therefore, application seeking condonation of delay is dismissed and as a necessary corollary thereto, appeal along with connected MP is also dismissed as being barred by limitation.