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2023 DIGILAW 286 (JK)

Zaffar Iqbal v. Union Territory of Jammu and Kashmir

2023-07-17

M.A.CHOWDHARY, N.KOTISWAR SINGH

body2023
JUDGMENT : Chowdhary, J. 1. This intra Court appeal, under Clause 12 of the Letters Patent, has been preferred by the Appellant against the final Order/Judgment dated 26th of April, 2023 passed by the learned Single Judge in an application filed by the Appellant, along with others, seeking condonation of delay in filing the Review Petition against the final Order/Judgment dated 29th of April, 2015 passed in SWP No. 302/2010 titled ‘Dr. Nasreena Bashir & Ors. v. UT of Jammu and Kashmir & Ors.’, whereby the said condonation of delay application stands dismissed. 2. The impugned final Order/Judgment has been assailed by the Appellant, inter alia, on the following grounds: “I) BECAUSE, the Ld. Single Judge erred in not appreciating that the Appellant’s explanation, although lacking specific dates initially, substantially complied with the requirement to provide reasonable and sufficient cause for the delay, particularly in view of filing of supplementary affidavit by the Appellant. The destruction of records due to flash floods and the frequent absence of the counsel from the State are genuine and valid reasons that should be considered, despite not being presented in an ideal format. Therefore, the Impugned Order is unsustainable and illegal and cannot sustain in the eyes of law, therefore, deserves to be set aside. II) BECAUSE, the Ld. Single Judge erred in not appreciating that the dismissal of the application for condonation of delay is disproportionate to the circumstances at hand. The delay in filing the accompanying review petition is a procedural matter and should not overshadow the merits of the case. Granting condonation of delay would serve the interests of justice and ensure a fair consideration of the review petition on its merits. Consequently, the impugned Order is patently illegal and is also perverse in the facts and circumstances of the case, therefore, deserves to be set aside. III) BECAUSE, the Ld. Single Judge erred in giving a strict interpretation of the Appellant’s explanation, which overly focuses on technicalities, disregarding the overarching principle of substantive justice. The Ld. Single Judge ought to have taken a more flexible approach, considering the genuine reasons for the delay and safeguarding the Appellant’s right to have his case heard and considered on its merits. Consequently, the impugned Order is bad in law, therefore, deserves to be set aside. IV) BECAUSE, the Ld. The Ld. Single Judge ought to have taken a more flexible approach, considering the genuine reasons for the delay and safeguarding the Appellant’s right to have his case heard and considered on its merits. Consequently, the impugned Order is bad in law, therefore, deserves to be set aside. IV) BECAUSE, the Ld. Single Judge erred in the exercise of its discretion by dismissing the application for condonation of delay. The Ld. Single Judge failed to give due consideration to the circumstances surrounding the delay, such as the destruction of records due to flash floods and the counsel’s frequent absence from the State. The dismissal was based on an overly strict interpretation of the requirements and a hyper technical approach, disregarding the overall interests of justice. Resultantly, the impugned order has caused immense prejudice to the rights of the Appellant. Consequently, the impugned order is legally untenable and does not deserve to sustain in the eyes of law, therefore, deserves to be set aside.” 3. Mr Danish Majid Dar, the learned Counsel for the Appellant, has vehemently argued that the application, wherein the impugned final Order/Judgment has been passed by the learned Single Judge, should have been allowed as plausible reasons had been assigned to show sufficient cause, which was to be liberally constructed in favour of the Appellant. He has further argued that the Review Petition could not be filed in time by the Appellant herein for the reason that there was destruction of his record of the Petition due to flash floods and, secondly, that the Counsel of the Appellant was most of the time out of Station. Accordingly, the learned Counsel was prayed that the instant appeal be allowed and the impugned final Order/Judgment be set aside so that the Review Petition is heard and decided on its merits. 4. Mr Shah Aamir, the learned Counsel appearing on behalf of the Respondent-J&K Public Service Commission, vehemently, opposed the plea raised by the Appellant and projected by his Counsel, by stating that the flash floods had taken place in the Valley of Kashmir in the year 2014, whereas the Writ Petition had been disposed of by the learned Single Judge in the year 2015, therefore, the first contention raised by the learned Counsel for the Appellant that the record of the Petition had been destroyed due to flash floods, being factually incorrect, is not tenable. He has further argued that the other plea with regard to the non-availability of the Counsel of the Appellant for months together, being out of Station, does not, in any way, come within the purview of ‘sufficient cause’ so as to allow the application filed by the Appellant herein for condonation of delay and that the learned Single Judge has rightly rejected the plea raised by the Appellant. The learned Counsel, in this backdrop, has prayed that the impugned final Order/Judgment be upheld and the appeal dismissed. 5. We have heard the learned Counsel for the parties, perused the pleadings on record and considered the matter. 6. From the perusal of the record, it appears that the Review Petition was filed after a period of about seven months from the date of expiry of the statutory period to file the same. The reasons projected by the Appellant, however, did not persuade the learned Single Judge and, by a reasoned Order, the learned Single Judge has declined to condone the inordinate delay in filing the Review Petition by the Review Petitioners, including the Appellant herein. 7. The first contention of the Appellant that the Review Petition could not be filed in time on account of destruction of record of the Petition due to the flash floods is not factually correct, inasmuch as the Review Petition, wherein the final Order/Judgment passed on 29th of April, 2015 in SWP No. 302/2010 was sought to be reviewed, had been filed in the year 2016 which is against the admitted position that the floods had, in fact, taken place in the Kashmir Valley in the year 2014 and not in the year 2015, as is being projected to be believed by the learned Counsel appearing for the Appellant. Besides, the other plea of the Appellant that the Counsel for the Applicant/Appellant herein, Petitioner No.3 in the main Writ Petition, was most of the time out of State and that this absence of the Counsel has been attributed for a period of many months does not appeal to this Court as to why the Petitioner/Appellant herein was waiting for a particular Counsel to file the Review Petition, unmindful of the law of limitation, which affects the party harshly when it is applied with all its rigour, being a statutory requirement. 8. 8. The learned Single Judge, while passing the impugned Judgment, has relied upon two judgments on the subject delivered by the Hon’ble Apex Court in case titled ‘P. K. Ramachandaran v. State of Kerala, AIR 1998 SC 2276 ’ and case titled ‘Perumon Bhagvathy Devaswam v. Bhargavi Amma, 2008 (8) SCC 321 ’, wherein it has been held that the law of limitation may harshly affect a particular party, however, it has to be applied with all its rigour when the Statute so prescribes and that the Courts have no power to extend the period of limitation on equitable grounds. It has also been held that the decisive factor in deciding an application for condonation of delay is not the length of delay, but sufficiency of satisfactory explanation. 9. Hon’ble the Supreme Court, in case titled ‘Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 ’, while dealing with a case involving condonation of delay, has observed as under: “15 (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. ……………… 15 (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 15 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ……………… 15 (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. ……………… 16 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ……………….. 22. ……. ……………… 16 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ……………….. 22. ……. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice.” 10. Again, the Hon’ble Apex Court, in case titled ‘Brahampal @ Sammay & Anr v. National Insurance Company’ bearing ‘Civil Appeal No. 2926 of 2020 arising out of Special Leave Petition (C) No. 13645 of 2018’, at Paragraphs 18 to 20, has held as under: “18. At this juncture, we need to interpret the term “sufficient cause” as a condition precedent for the granting of the discretionary relief of allowing the appeal beyond the statutory limit of ninety days. Although this Court has held that provisions of the Limitation Act, 1963 does not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting “sufficient cause” under the Limitation Act Courts have taken a liberal interpretation. This Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs, (2008) 8 SCC 321 , observed that: “13.…The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.” 19. The aforesaid view was reiterated in the case of Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685 , wherein this Court held that: “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The aforesaid view was reiterated in the case of Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685 , wherein this Court held that: “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.” 20. The Court in the abovementioned cases, highlighted upon the importance introducing the concept of “reasonableness” while giving the clause “sufficient cause” a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party’s inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.” 11. In such cases, where there exists inordinate delay and the same is attributable to the party’s inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.” 11. Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of more than about seven months in filing the Review Petition on part of the Appellant before the learned Single Judge and no satisfactory explanation has come forward on that count, either before the learned Single Judge or before this Court, except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bonafides on the part of the litigant, but, in the instant case, the Appellant appears to have taken his own time to formulate an opinion that the Review Petition had to be filed. It has, however, nowhere been stated that he was, at all, prevented to take such a decision earlier in point of time. It is evident that the Appellant has been negligent in prosecuting his claim within time and the explanation offered for the delay in filing the Review Petition is neither plausible nor reasonable, so as to bracket as ‘sufficient cause’ to condone the delay. 12. Having regard to the facts and circumstances of the case and after hearing the rival submissions urged at the Bar, coupled with the enunciations of law, as discussed hereinabove, we are of the opinion that the learned Single Judge has passed the impugned final Order/Judgment by assigning reasons therefor and same, thus, does not call for any interference. 13. Viewed in the context of what has been said and done hereinabove, we do not find any illegality or perversity in the impugned final Order/Judgment passed by the learned Single Judge, as would warrant its interference from this Court in appeal. Accordingly, the Letters Patent Appeal is dismissed, along with the connected CM.