Shahnaz Ahmed Chowdhary v. Union Territory of Jammu and Kashmir Th Commissioner Secy to Govt. Public Work Department

ORDER

11.08.2023 Tashi Rabstan, J:

CM No.1400/2020 (Condonation of delay application)

¶1Instant application has been filed by the applicants-State seeking to condone the delay of 891 days in filing the accompanying appeal against the order dated 17.05.2017 passed by learned Single Judge in SWP No. 1899/2007 titled 'Shehnaz Ahmed Chowdhary v. UT of J&K and Ors'.

¶2Mr. Jasbir Singh Jasrotia, learned counsel appearing for the applicants-appellant has vigorously argued that delay in filing the appeal on the part of the applicants is neither intentional nor willful.

¶3It is contended that the impugned order is passed on 17.05.2017 and the applicants were oblivious of the same in view of the fact that the senior counsel engaged by them was not keeping good health. It is also contended in the condonation application that another counsel engaged by the applicants could not represent the appellants in the case due to some unavoidable circumstances. The applicants applied for the certified copy of the judgment on 01.07.2019 and Sr. No. 8

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finally the condonation application along with accompanying appeal was filed on

27.12.2019. Hence this application for condoning the delay in filing the appeal.

¶4Learned counsel for the applicants submits that the grounds in the appeal are strong on merits and the applicants are sure to succeed in the appeal, and in case the delay is not condoned, the appeal will not be heard on merits.

¶5On the other hand, Mr. Ravinder Gupta, learned AAG for the respondents has shown strong reservations in case the delay is condoned. He submitted that delay caused in approaching the court is huge, unexplained and the reasons given for delay are nothing but charade.

¶6We have heard learned counsel appearing for the parties and perused this application.

¶7On perusal of the application seeking delay condonation, it appears that the applicants are not serious in filing the appeal within time as they might have been in deep slumber because the judgment impugned is of the year 2017 and the application seeking condonation of delay in filing the appeal was filed only on 27.12.2019, which depicts that the applicants have acted in a very nonchalant manner. The cavalier attitude on the part of the applicants is writ large as they have not bothered themselves to even give specific dates, for example, date of receiving the certified copy of the judgment, which is conspicuous by its absence. A bare perusal of the dates, given in the application, shows that the delay explained is on vague grounds. There is no sufficient cause shown, let alone plausible and cogent explanation for seeking condonation of delay. No sufficient cause is forthcoming which would sway this Court to take a lenient view as the approach adopted by the applicants is nothing but

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perfunctory, which could justify the time which the applicants have taken in filing the appeal.

¶8Law is well settled with regard to condonation of delay in filing the appeal and same has been reiterated in judgment passed by the Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and ors. reported as (2014) 2 SCC (LS) 595. The relevant paragraph is reproduced as under:

¶9"From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice.

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.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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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.

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.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

¶7A similar view has been expressed by the Apex Court in Brijesh Kumar and ors. v. State of Haryana and ors reported as AIR 2014 SC 1612, the relevant extract whereof is reproduced below: "11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.

¶12It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person."

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¶8Having regard to above referred judgments, it suggests that the applicants have viewed delay as a non serious matter and its lackadaisical tendency is exhibited by its nonchalant manner.

¶9In view of the facts and circumstances of the case, observations made hereinabove and the settled law position, we are of the opinion that the explanation provided by the applicants is not sufficient to condone the delay. The application seeking condonation of delay is dismissed.

¶10As a result thereof, the accompanying appeal i.e. LPA No.35/2010 is also dismissed.

Jammu:

11.08.2023 Raj Kumar (Rahul Bharti) Judge

(Tashi Rabstan) Judge

Whether the order is speaking? Yes/No.

Whether the order is reportable? Yes/No.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU LPA No.35/2020 CM No. 1400/2020 CM No. 1401/2020 Shahnaz Ahmed Chowdhary ….Petitioner(s)/Appellant(s) Through :- Mr. Jasbir Singh Jasrotia, Advocate. V/s UT of J&K and others ….Respondent(s) Through :- Mr. Ravinder Gupta, AAG Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE