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2021 DIGILAW 355 (JK)

Noor Din v. Jalal-ul-din

2021-07-27

PUNEET GUPTA

body2021
JUDGMENT : 1. The appellants have filed Civil Second Appeal against the judgment and decree dated 20.10.2012 passed by learned District Judge, Kishtwar. The appeal is accompanied with the application for condonation of delay which is of 30 days. The respondent stands served and is represented by the counsel. The objections to the application have also been filed. It is submitted in the application that the appellants consulted their counsel at Jammu who advised the appellants to make available a certified copy of the judgment and decree sheet of the court of Sub-Judge, Kishtwar. The appellants applied for the copy on 4th January, 2013 and received the same on 22.01.2013 as the court was closed up to 20th January. The appellant-Noor Din who contacted the counsel at Jammu fell ill and remained confined to bed for two weeks and was not in a position to travel thereafter also. One of the appellants Noor Din was following the proceedings before the court below and contacted the counsel at Jammu and because of the above facts there was delay in the filing the application. 2. The respondent in his objections has denied the factual averments contained in the application. It is submitted that there is no medical evidence supporting the illness of the appellant-Noor Din nor is it written as to when the appellant came to Jammu and consulted his advocate. No sufficient cause shown in the application for allowing the same and that the appellants were negligent in filing the appeal within time. Even if one of the appellants namely Noor Din was unable to file the appeal within time because of illness the other appellant could have filed the appeal. The application and the objections are also supported by the affidavits. 3. The learned counsels for the parties have argued more or less as per their respective pleadings. Mr. V. R. Wazir learned senior counsel appearing on behalf of the appellants has argued that the facts mentioned in the application make out sufficient cause for condoning the delay in filing the appeal. Moreover the appellants have raised substantial questions of law which should be decided on merits. 4. Mr. Mr. V. R. Wazir learned senior counsel appearing on behalf of the appellants has argued that the facts mentioned in the application make out sufficient cause for condoning the delay in filing the appeal. Moreover the appellants have raised substantial questions of law which should be decided on merits. 4. Mr. A. H. Qazi learned counsel appearing on behalf of the respondent has argued that the application has been drafted in a very casual manner as it is bereft of necessary details which can convince the court of not filing the appeal within time. The rigorous of Section 5 of the Limitation Act cannot be overlooked and have to be scrupulously observed in a case like the present case. 5. At the outset, it may be stated that the provisions of Section 5 of the Limitation Act have ramification as in case the appellant fails to explain the delay in filing the appeal within the period of limitation without any reasonable cause the appellant loses his right to have his appeal decided on merits and the respondent who has obtained order in his favour earlier gets undisputed right of having the order attaining finality in his favour. The delay in filing the appeal is fraught with adverse consequences for the appellant in case he fails to make out a case for allowing the application. 6. There is no dispute with the proposition of law that the delay is required to be explained by the appellant satisfactorily and the rigours of provisions of Limitation Act cannot be diluted in any manner. 7. Keeping in view the above proposition of law, the court is required to decide the application in hand. It is surprising that the appellant while filing the application in hand has even failed to state as to when he came to know of the judgment and decree passed by the 1st Appellate Court and when did he approach his counsel at Jammu for consultation for filing 2nd Appeal. The vague submission is made in the application that one of the appellants-Noor Din came to Jammu and consulted his lawyer who further asked him to bring copies of judgment and decree of the Sub-Judge Kishtwar (trial court). One of the appellants who was pursuing the case earlier fell ill and therefore that factor also caused the delay is again the argument which is not backed by any proof. One of the appellants who was pursuing the case earlier fell ill and therefore that factor also caused the delay is again the argument which is not backed by any proof. The averments contained in the petition are quite vague and do not provide sufficient cause for delay in filing the application. The provisions of Limitation Act are required to be thoroughly adhered to and no license can be granted to the party who fails to satisfy the court with the reasonable cause for not filing the appeal within the stipulated period. Each day delay is required to be explained by the appellants which is not forthcoming in the present case. 8. The Court does not find that the appellants herein have been able to make out a case for condonation of delay in filing the present appeal. Accordingly, the application filed for condonation of delay is dismissed. Consequently, the appeal filed also stands dismissed.