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2018 DIGILAW 1014 (JK)

Baldev Raj Mahajan v. Food Corporation of India

2018-12-21

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant application, applicant-Baldev Raj Mahajan seeks condonation of delay in filing connected restoration application (Rest.(OW) No.22/2012) seeking restoration of CONDL(OWP) no.03/2011 sought in Rest (OW) No.08/2011 titled, Baldev Raj Mahajan vs. Food Corporation of India and others, which was dismissed in default vide order dated 19.08.2011 by this Court. 2. The main facts, as stated in the application, are that; in March, 2011, the petitioner came to know that the writ petition filed by him was dismissed in default on 17.12.2008 and, thereafter he immediately filed an application to restore the same along with an application for condonation of delay before this Court. It is contended that the application bearing Condl (OWP) No.03/2011 was listed before this Court for consideration on 19.08.2011, which was also dismissed in default by this Court. It is contended that the petitioner who is more than 80 years of age, is suffering from multiple ailments and is confined to bed for the last couple of years. It is further contended that the counsel for the petitioner, namely, Mr. Swami Raj Sharma, Advocate is not regularly appearing before the Court due to his advance age and ill-health and, as such, was not present on 19.08.2011 when the application for condonation of delay i.e. CONDL (OW) No. 03/2011 resulted in dismissal. On the date when application for condonation of delay was dismissed, the petitioner was also not present in the Court. Therefore, the application was dismissed on the ground that neither counsel nor petitioner was present in the Court and this fact was not known to the petitioner. It is further contended that when the petitioner contacted his counsel on 08.05.2012, he was informed by his counsel about the dismissal of the application. The petitioner immediately applied for and get the certified copy of the order of dismissal dated 19.08.2011 on 10.05.2012 and has now filed the present application. 3. It is contended that the delay in filing the application seeking restoration of application for condonation of delay is neither intentional nor deliberate and the grave injustice has already been caused to the petitioner by the respondents by occupying the land lawfully owned by the petitioner and in case the writ petition filed by the petitioner is not decided on its merits, a grave prejudice shall be caused to the rights of the petitioner. Since valuable rights of the petitioner as also substantial questions of law are involved, therefore, delay in the instant case is otherwise immaterial. It is also contended that the petitioner being an old aged person, is fighting for his rights for the last more than one decade and in case his writ petition is not decided on merits, he will suffer an irreparable loss and injury which cannot be compensated in future by any means. 4. The stand taken in the objections filed by the respondents is that the said writ petition has been filed against the respondents, who have been in occupation and possession of the land in question under law as possession of the same came to be handed over to the respondents by the State Government under due process of law. That the petitioner has no right or claim of any kind against the respondents by stating that the writ petition, in fact, is not maintainable. That the ex-parte order passed by this Hon’ble Court was set aside and respondents have already filed the objections to the writ petition; that the assertions made in the application are not supported by any documentary evidence except filing of writ petition before this Court; that the applicant filed the application for restoration along with an application for condonation of delay but this motion of the applicant was very late after a period of three years which is not recognized by law; that this court has dismissed the application on the ground of non-appearance of petitioner as well as his counsel; that the alleged medical certificate does not disclose the fact that the applicant is of 80 years of age and on the face of it, it indicates that the applicant was operated at a particular hospital in April, 2008 and he has been under the treatment; the certified copy of the order in question was obtained by the applicant on 21.11.2012, whereas the applicant applied for certified copy on 10.05.2012, which shows the conduct of petitioner. 5. It has further been stated that the writ petition of the applicant was dismissed in default on 17.12.2008 but the restoration application alongwith application for condonation of delay bearing no. Cond. 5. It has further been stated that the writ petition of the applicant was dismissed in default on 17.12.2008 but the restoration application alongwith application for condonation of delay bearing no. Cond. 03/2011 came to be filed in the year 2011 after a long delay of about three years without showing and explaining of sufficient cause in order to make out a case for condoning of such an inordinate delay of three years which is evident from the facts of the case of the applicant who in fact was not sincerely active to get his writ petition decided as early as possible but he chose to get it dismissed in default; that applicant had the knowledge of the dismissal of his writ petition but he approached to this Court for restoration of his writ petition after a long delay of three years which has not been explained by showing of sufficient cause for his non-appearance in the court and filing of the restoration application, accompanied by an application for condonation of delay. Since his case for restoration of writ petition was not based on sufficient cause shown by him, not only for his non-appearance in the Court on the date of dismissal of his petition (OWP) but also approaching to this Court so late having been slept over the matter years together. 6. Learned counsel for the petitioner has placed reliance upon four judicial pronouncements/judgments passed by the Apex Court in cases titled as “Rafiq Vs. Munshilal”, reported as 1981 AIR (SC) 1400; and “Ram Kumar Gupta and Ors. Vs. Har Prasad and Anr.”, reported as 2010 AIR (SC) 1159. 7. I have considered the rival contentions of learned counsel for the parties and gone through the record. 8. Briefly, applicant filed OWP No.228/2004, which came to be dismissed due to non prosecution on 17.12.2008; an application for restoration was filed alongwith condonation of delay application in 2011, this application for Condonation of Delay no.3/2011 was too dismissed in default on 19.08.2011; now present application for condonation of delay has been filed on 26.11.2012 after about delay of 431 days. The reason given is that applicant is more than 80 years of age, suffering from multiple ailments and is confined to bed for the last couple of years. The application further contends that the counsel for the petitioner, namely, Mr. The reason given is that applicant is more than 80 years of age, suffering from multiple ailments and is confined to bed for the last couple of years. The application further contends that the counsel for the petitioner, namely, Mr. Swami Raj Sharma, Advocate is not regularly appearing before the Court due to his advance age and ill-health and, as such, was not present on 19.08.2011 when the application for condonation of delay CONDL (OW) No. 03/2011 resulted in dismissal of the same. 9. There is no dispute with regard to law that second application for restoration for condonation of delay application in filing restoration application is maintainable, but limitation is same i.e. 30 days from dismissal of such application. But law is well settled that court can condone the delay in filing application, if applicant satisfies the court that he was having sufficient cause due to which he could not file application within prescribed period of limitation. Sufficient cause means cause, which court thinks adequate and beyond control of person seeking benefit of law of condonation of delay. Now law is also settled that each and every days’ delay after expiry of limitation period, has to be explained by party seeking condonation of delay, after the limitation period is over. This delay has to be explained by cogent reasons. 10. From grounds mentioned in the application, it is apparent that these are after thought and has cleverly been drafted, thereby creating illusion of knowledge. This is not permissible under law. Medical certificate does not show the age of petitioner; certificate has been obtained from private medical doctor; there is no other substantial material on record from which it can be inferred that petitioner was actually suffering from any illness; this certificate also does not bears signature of petitioner. 11. Provisions of Law of limitation are meant for careful and cautious person, it is not meant for party, who remains casual and asks for condoning the delay on insufficient grounds. Law of limitation has to be applied with its entire rigor, if party fails to demonstrate sufficient cause, otherwise very purpose of limitation act will be rendered inconsequential. 12. The High Court of J&K in case titled State Vs. Law of limitation has to be applied with its entire rigor, if party fails to demonstrate sufficient cause, otherwise very purpose of limitation act will be rendered inconsequential. 12. The High Court of J&K in case titled State Vs. Ghulam Nabi Gadda and Ors., reported in 2010 (1) SLJ 65 has held as under :- “J&K Limitation Act Section 5; Condonation of delay: The expression “sufficient cause” is not to be liberally construed to such an extent that the rules are rendered in consequential and reduced to a “dead provision” on the State book-The Rules of Limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner so as to save the system from anarchy. The relevant paras are as under :- 10. Why should there be a time frame prescribed under law for a legal remedy? This may be a thresh hold question looking for answer whenever an application for condonation of delay and in particular long and inordinate delay, is made. The answer to the questions is bound to held one to understand the object of law of Limitation and the circumstances when delay must be condoned. 11. Supreme Court in N. Balakrishan Vs. M. Krishanmurthy has commented an underlying philosophy as under : “Law of Limitatin fixes a life span for ….legal remedy for the redress of the legal injury….Time is precious and the wasted time would never resist. During the efflux of time newer cause’s would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So, a life span must be fixed for each remedy. Unending period for launching the remedy may lead of ending uncertainty and consequential anarchy. Law of Limitation is thus, founded on public policy. It is enshrined in maxim, “Interests reipublicae up sit finis litium (It is for the general welfare that a period be put to litigant). Rules of Limitation are not meant to destroy the right of the parties. They are meant to see that the parties do not resort to dilatory tactics but to seek their remedy promptly. The idea is that every legal remedy must be kept alive for legislatively fixed period of time.” 12. Rules of Limitation are not meant to destroy the right of the parties. They are meant to see that the parties do not resort to dilatory tactics but to seek their remedy promptly. The idea is that every legal remedy must be kept alive for legislatively fixed period of time.” 12. The Social Planners/Law makers while prescribing a time frame or life span for a legal remedy visualized that situations may arise where victim of legal injury for the reasons beyond his control may not be in a position to seek legal remedy within prescribed period and found it just and proper to enable the court with a plea that he was prevented by a sufficient cause from approaching the court within the prescribed time and get the delay condoned. In AIR 1987 SC 1353 and in a number of authoritative pronouncements it has been emphasized that the expression sufficient cause should be given a liberal consideration. It has been laid down time and again that the courts should not insist on strict proof of the cause pleaded or assess and evaluate the cause at the touchstone of the standard of proof followed in a criminal case. An individual asking for condonation of delay, nonetheless, is required to plead the “sufficient cause” and to substantiate such case on the strength of material placed on the file and the surrounding circumstances. The expression sufficient cause is not to be liberally construed to such an extent that the rules are rendered inconsequential and reduced to a “dead provision” on the statute book. The Rules of Limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner, so as to save the system from anarchy.” 13. The facts of the case titled “Rafiq Vs. Munshilal”, reported as 1981 AIR (SC) 1400, are quite different and are pertaining to appeal which was disposed of in absence of counsel for appellant, so not applicable in present case. The facts in case titled “Ram Kumar Gupta and Ors. Vs. Har Prasad and Anr”., reported as 2010 AIR (SC) 1159, are also quite different as in that case it was fact that counsel for applicant became Additional Advocate General so could not appear. In case titled “N. Balakrishnan Vs. The facts in case titled “Ram Kumar Gupta and Ors. Vs. Har Prasad and Anr”., reported as 2010 AIR (SC) 1159, are also quite different as in that case it was fact that counsel for applicant became Additional Advocate General so could not appear. In case titled “N. Balakrishnan Vs. M. Krishnamurthy”, reported as 1998 AIR (SC) 3222, it has been held that there should be acceptability of reasons shown for non appearance and in case counsel left the practice and joined the job. Law pronounced by apex court has no universal application in all cases; firstly facts are to be seen and then law pronounced on particular facts are to be applied. 14. In totality of facts and circumstances, this application is dismissed as applicant has failed to demonstrate any ground to condone the delay in filing restoration application.