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2018 DIGILAW 124 (JK)

State of J&K v. Mohammad Tayub Laherwal

2018-03-03

M.K.HANJURA, MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Delay of 660 days in preferring the Letters Patent Appeal is sought to be condoned. 2. We have heard learned counsel for the appellants and perused the records 3. SWP No. 2488/2012 captioned "Mohammad Tayub Laherwal vs. State and others" has been disposed of vide judgment dated 01.03.2016. The operative part of the judgment, for facility of reference, is quoted here-under: "Without going into the merits of the case having regard to the nature of controversy involved coupled with the submissions made and after having scrutinized the material made available, respondents, in the interests of justice, are directed to consider the case of petitioner for his adjustment against the available post of Jr. Yatchman, in terms of order No. Est/CC/2869-71/DT dated 18.05.2007 on the analogy of Sh. Sonaullah Bohru, and take a decision thereon within a period of one month from the date copy of the judgment is served upon them." 4. The judgment has been passed after hearing both the parties. For last 660 days, applicants have not chosen to file appeal but now facing the contempt proceedings for not having implemented the judgment for last one year and eleven months i.e. approximately two years, have proposed to file the appeal. 5. Respondents instead of considering implementation of the judgment attempted to fill up the post, as a result whereof respondent No. 1 filed contempt (SWP) No. 103/2017. 6. The applicants issued an advertisement notice for the post of Junior Yatchman necessitating filing of another contempt petition bearing contempt No. 794/2017 wherein direction has been issued not to fill up the post of Junior Yatchman. 7. Contempt proceedings are pending regarding non-implementation of the judgment dated 01.03.2016. The applicants to thwart the contempt proceedings, have now chosen to file the Letters Patent Appeal. 8. Learned AAG would submit that delay in preferring the appeal is neither deliberate nor intentional but is circumstantial. Further submitted that the learned Single Judge vide order dated 28.11.2017 passed in contempt proceedings observed that the rule shall be framed against respondent No. 2 therein for willful disobedience of the Court order. Said order dated 28.11.2017 has been challenged by medium of a separate appeal. It is further stated that, in fact, applicants had conveyed to the counsel who earlier was representing the State to file an appeal which he has not. 9. Said order dated 28.11.2017 has been challenged by medium of a separate appeal. It is further stated that, in fact, applicants had conveyed to the counsel who earlier was representing the State to file an appeal which he has not. 9. To entertain this application, which otherwise is destined to be dismissed, shall be disadvantageous to the respondent No. 1 in whose favour judgment dated 01.03.2016 has been passed. It would be a travesty of justice to allow the applicants to drag the respondent No. 1(writ petitioner) into an unending litigation. If they had a grievance against the judgment, they should have filed appeal well within time and at least after the contempt proceedings were initiated against them in the year 2017. 10. Total indolence is exhibited by the applicants, therefore, delay by no stretch of imagination is condonable. Facing the peril of contempt, applicants have chosen to file appeal much after the prescribed period of limitation simply to add to the agony of the writ petitioner who has been waiting for reaping the fruits of the judgment for last two years. 11. "Sufficient cause" for condoning the delay has to be liberally construed so as to advance the cause of justice. It is trite that when technical and substantial justice are pitted against each other, it is the later which has to be preferred. It is also trite that when total indolence is attributable to the seeker of condonation, then in that eventuality, delay is not to be condoned even if limitation may operate harshly against the seeker thereof. It shall be quite relevant to quote para 6 of the judgment passed by the Hon'ble Apex Court in the case of P.K. Ramachandran v. State of Kerala and another, reported in AIR 1998 SC 2276 : "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." 12. 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." 12. 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" reported in (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. 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. 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]." 13. The judgment sought to be assailed, the operative part of which stand quoted in para 3 hereinabove, provides for considering the case of writ petitioner. The applicants should have considered the case of the writ petitioner and should have passed orders whatever they would have deemed proper in accordance with law and in tune with the judgment. Indolence in not according consideration to the case of the writ petitioner and in not passing appropriate orders whatever would have been permissible in law would not have given rise to the launching of contempt proceedings. When the judgment was to be implement within one month, why the applicants have sat over it is a matter of concerned. 14. Seeker of justice cannot be allowed to be dragged indefinitely. It is still open for the applicants to accord consideration to the case of the writ petitioner in accordance with the judgment dated 01.03.2016 and to pass appropriate orders thereon. That will be the only course available to them so as to purge contempt. 15. Result of the application seeking condonation of delay on the basis of grounds alleged in the application and for the facts and circumstances stated hereinabove, is the failure, therefore, to put other side un-necessarily on notice formally and then to dismiss the application shall be otiose, thus we are not persuaded to issue notice. 16. There being no merit in the application seeking condonation is dismissed. As a sequel thereto, appeal shall stand dismissed as barred by limitation