Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 494 (JK)

Kokous Jahingir v. State of J&K

2019-11-15

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. Petitioners' father (Kokous Jahingir) assailed the order dated 30.03.1992 passed by Financial Commissioner, Revenue in OWP No. 418/1992. This writ petition was dismissed in default on 16.04.2001. Application for restoration of the same alongwith condonation of delay application was filed and registered as Cond (OWP) No. 1-A/2001, this application too was dismissed in default of appearance on 08.09.2006. 2. Applicants, who are legal heirs of Kokous Jahingir, now seek condonation of 2546 days' in considering restoration of OWP No. 1-A/2001, which was dismissed in default on 08.09.2006. 3. They submit that their father could not pursue his case as he was seriously ill and was hospitalized in 2001, resultantly this writ petition was dismissed. He, thus, filed an application seeking restoration of the same, but that too was dismissed for non-prosecution on 08.09.2006. 4. It is their case, they were informed about the pendency of this case by their father during his illness. Thereafter they would regularly enquire about the listing of the matter from their counsel. Applicant No. 1 was advised by his friend to seek information regarding his case from the computer machine which was installed for convenience of the public in the Court. He along with his friend operated the said computer machine on 18.07.2013 and came to know that the aforesaid application has been dismissed in default on 08.09.2006. Applicant No. 1 contacted his counsel, who expressed his ignorance about the dismissal of the case. 5. Applicants, thus, had no knowledge about the dismissal of their case, therefore, they seek condonation of delay in filing restoration application. It is submitted that they will suffer irreparable loss and deprived of their valuable rights in property, in case the delay is not condoned and the restoration petition as well as writ petition be heard on merits. 6. Respondents in their objections have vehemently opposed the application seeking condonation of delay on the ground that it is hopelessly time barred. It is also submitted that the applicants have been negligent and indolent in pursing this petition which resulted in the restoration application being dismissed twice. This application has been filed after a long delay of 18 years and with passage of time, the rights of the parties have settled. This application is hopelessly belated and has been filed only to harass the respondents by reopening the matter after 18 long years. 7. This application has been filed after a long delay of 18 years and with passage of time, the rights of the parties have settled. This application is hopelessly belated and has been filed only to harass the respondents by reopening the matter after 18 long years. 7. Heard learned counsel for the parties. 8. It is a settled position of law that 'where a case has been presented beyond the period of limitation, a sufficient cause has to be shown for justifying delay. The applicant is not entitled to seek condonation of delay as a matter of right. Thus, the applicants have to explain as to what was the sufficient cause for the delay and whether the reason was adequate and enough to prevent him from approaching the Court within limitation. Thus, the Court can condone delay only if a party is found not to be negligent, inactive or lack of bona fide or his part in the facts and circumstances of the case. The law of limitation is based on a public particular. The Apex Court in, Brijesh Kumar and others v. State of Haryana and others, (2014) 11 SCC 351 has held as under: "8. the Privy Council in General Fire and Life Assurance Corporation Limited v. Janmahomed Abdul Rahim, AIR 1941 PC 6 , relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that "a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by law." 9. In the Apex Court in Basawaraj and others v. The Special Land Acquisition Officer, AIR 2014 SC 746 , while considering the law of limitation, has held in paragraph No. 12 as under: "12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute." 10. Thus, it has been held that unlimited limitation would lead to a sense of insecurity and uncertainty, and would prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence and laches. 11. The applicants' case for condonation of delay is that the counsel did not inform him about the dismissal of the case, and he acquired knowledge about the same only when he visited the Court along with his friend. These assertions are without any details, names and in the absence of any affidavit of the counsel or the friend to support these assertions cannot be considered as sufficient cause to unsettle the rights of the parties which stand settled. Applicants have slept over their rights for many years and because of their inaction and inactiveness did not pursue their case which was dismissed in 2001, and after waking up from deep slumber, they seek to reopen the dispute which has attained finality in 2001. 12. In view of the aforesaid, no sufficient cause has been shown to seek condonation of 2546 days. Thus, there is no merit in the application and same is therefore, dismissed. Consequently, the accompanied restoration application is also dismissed.