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2018 DIGILAW 914 (JK)

State of J&K v. Abdul Rashid

2018-11-28

TASHI RABSTAN

body2018
JUDGMENT : 1. Challenge in this revision petition is thrown to order impugned dated 30.11.2017 passed by learned 2nd Additional District Judge, Jammu, in file No. 108/Misc dismissing the application of the petitioner seeking condonation of delay of 5 years, 9 months and 16 days in preferring appeal against the decree passed by learned Sub Judge (CJM) Jammu. 2. The respondent no. 1 approached the trial court for declaration to the effect that he has been selected and appointed as Teacher pursuant to Advertisement Notice dated 08.07.1985 issued by JKSSRB. Respondent No. 1 applied against the said advertisement and called for interview on 11.12.1985 and figured in the select list, consequently, an appointment order in his favour came to be issued on 20.03.1987 and he joined in the office of the then Block Education Officer, Ukhral on 26.03.1987. However, he was not allowed to mark his attendance by petitioner no. 4, the then Block Education Officer, Ukhral and is his place respondent no. 3 who incidentally has the same name and parentage was treated to have been appointed as Teacher. The Principal Government HSS Banihal came to be appointed as Enquiry Officer and submitted his report to petitioner no. 3, the then Chief Education Officer, erstwhile Doda, on 1.04.2008 holding respondent no. 3 was the candidate who was selected and entitled to letter of appointment. The respondent no. 1 in this background filed the declaration suit in the court of learned Sub Judge (CJM) Jammu which was contested by the petitioners and after appreciating the preponderance of evidence decreed the suit on 04.02.2010, in favour of respondent no. 1 and declared him to have been appointed as Teacher. 3. The appeal filed by respondent No. 2-JKSSRB came to be dismissed on 18.10.2014 for default of appearance and petitioners didn’t filed the appeal and slept over the matter for about 5 years 9 months and 16 days from the date of decree and about 13 months from the date of dismissal of appeal filed by the respondent no. 2 and woke up only after the executing court issued notice in execution petition filed by respondent no. 1 and filed the appeal accompanied by application seeking condonation of delay before appellate court which came to be dismissed for not showing sufficient cause to condone the delay. 4. 2 and woke up only after the executing court issued notice in execution petition filed by respondent no. 1 and filed the appeal accompanied by application seeking condonation of delay before appellate court which came to be dismissed for not showing sufficient cause to condone the delay. 4. The cause of delay shown in the application seeking condonation of delay before appellate court was that appeal was filed by J&K SSRB in the Court of 2nd Additional District Judge Jammu and since the cause of petitioners was also pleaded in the same appeal and they were also arrayed as respondents in the said appeal and the petitioners did not chose to file separate appeal and when the appeal filed by J&K SSRB was dismissed in default on 18.10.2014, inter departmental correspondence started on 19.03.2015 but due to change of standing counsels and law officer of the department and other departmental exigencies, the appeal came to be filed on 20.11.2015 along with application seeking condonation of delay. 5. Per contra, the learned counsel appearing on behalf of respondent no. 1 has stated that inordinate delay in filing the appeal was not explained. He further stated that no evidence was led regarding the decision whereby standing counsel of the petitioners was directed to follow the appeal filed respondent no. 1 nor stated when did the petitioners came to know about dismissal of appeal. He also stated that period from the month of May 2015 to 14th October, 2015 is also not explained at all. 6. I have heard the learned counsel for the parties and perused the record. 7. Role of revisional court is very limited against the orders passed by lower courts. Unless such order exhibits any perversity on the face of it, interference against the such order is not warranted. 8. Power of condonation of delay is discretionary and in exercising this power the proof of sufficient cause is a condition precedent. What counts is not the length of the delay but the sufficiency of the cause in not filing the appeal within time is to be taken into account in using this discretion. What constitutes sufficient cause cannot be laid down by straitjacket formula. Whether or not there is a sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. 9. What constitutes sufficient cause cannot be laid down by straitjacket formula. Whether or not there is a sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. 9. It was held by Apex Court in P.K Ramachandran vs. State of Kerala ( 1997 (8) Supreme 332 , that the Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statue so prescribes and the courts have no power to extend he period of limitation on equitable grounds. 10. In the present case, the petitioners contested the suit before the trial court and when the suit was decreed in favour of respondent no. 1 and against the petitioners, the petitioners choose not to file the separate appeal. No evidence or any official correspondence was placed on record which would substantiate the fact that any counsel was instructed by petitioners to follow the appeal filed by the respondent no. 2, so much so, petitioners have not even disclosed the name of any such counsel. The petitioners adopted the callous approach in pursuing the appeal. Petitioners ought to have filed separate appeal when they allege that no notice u/s 80 of CPC was given by respondent no. 1 or ought to have filed revision against the order of entertainment of suit by the trial, despite knowing that this was preliminary objection. Even after knowledge of dismissal of appeal filed by respondent no. 2, petitioners slept over the matter for about 13 months and filed the appeal along with application for condonation of delay only after receiving notice in execution petition. The period from date of dismissal of appeal filed by the respondent no. 2 till the date petitioners filed the appeal is not properly explained except of delay on count of interdepartmental correspondence, change of standing counsels and law officers. 11. The Apex Court in G. Ramegowda, Major, Etc vs. Special Land Acquisition (1988 AIR 897) observed that in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of section 5 of Limitation Act it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. 12. The supreme court in Commissioner Of Income Tax, vs. Canara Bank, A.K. Azad and ors (1994 Supp (3) SCC 579) observed that when cases brought by or on behalf of the State are lost for such defaults what is endangered is, in the ultimate analyses, the public interest. This Court has, on occasions in the past, indicated that Government as a litigant is not and should not be treated in the same position as private litigant for, all purposes though the law of limitation is the same for both. This Court has also pointed out that the decision to prefer an appeal is not an individual decision but an institutional decision and that Government should be allowed some play at the joints. But that does not justify inordinate and unexplained delays. If officers in charge of the conduct of litigation on behalf of the Government by reason of improper motives, collusion or gross negligence are found to act at cross-purposes with the interest of Government, it is open to the Government to identify such officers' initiate disciplinary action and seek condonation of the delay on the ground of prejudice to public interest. In such cases this Court in order that public interest is not prejudiced, has condoned even long delays. 13. However, in the present case, record clearly reveals that dispute is between two individuals, i.e., respondent no. 1 and respondent no. 3 with respect to entitlement of appointment and no public interest, as such, is involved for which this court may take lenient view in terms of above referred judgments. Respondent no. 1 has already spent considerable time in contesting the suit and after having earned decree in his favour is unable to reap its fruit, even when appeal filed by respondent no. 2 and pursued by the petitioners stands dismissed in default of appearance. In such circumstances, respondent no. 1 cannot be allowed to suffer and vex again and again. 14. In view of aforesaid discussion, this revision petition lacks merit and deserves dismissal, same is accordingly dismissed along with connected IAs.