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JUDGEMENTS CONDL CMP No. 1/1997 Back To Index
OF JAMMU AND KASHMIR AT SRINAGAR
Date of decision 10.5.2000
State of Jammu and Kashmir
v/s Ghulam Rasool Rather
JUDGEMENT AND ORDER
Per Dr. B.P. Saraf, Chief Justice
This is an application for condonation of delay of about seven months in filing Letters Patent Appeal against the order of the learned Single Judge.
We have heard Mr. H. I. Hussain, learned counsel for the appellants, and perused the cause shown in paragraph 2 of the condonation application. The learned counsel states that the delay of seven months in filing the Letters Patent Appeal has been properly explained. He submits that the cause shown for the delay is reasonable and satisfactory and considering the facts and circumstances of the case and the cause shown, the delay should be condoned. The learned counsel further states that, in the instant case, the respondent (writ-petitioner) himself approached this Court after six years of the impugned action. The respondent was appointed temporarily for 89 days in the year 1987 and his services were terminated thereafter in terms of the above order on completion of 89 days. This action of the appellants was challenged by the respondent by filing the writ petition in the year 1993, after about six years of the impugned action. The learned Single Judge, without even admitting the writ petition, allowed the writ
petition for the failure of the appellant-State to file reply pursuant to notice before admission issued by the court, set- aside the order of termination of service and directed the State Government to re-employ the petitioner, regularise him and extend all consequential benefits. It is this order of the learned Single Judge in the writ petition which is subject-matter of challenge in the present Letters Patent Appeal. The learned counsel submits that though the appellants have set out in details the factors which caused the delay to satisfy the Court that there was sufficient and reasonable cause for the delay of seven months in filing the Letters Patent Appeal and the delay might be condoned on that count alone, the fact that the writ petitioner himself had challenged the action of the State Government after long lapse of six years should also be taken into account in considering the prayer for condonation of delay. Reliance is placed in support of this contention on the decision of the Supreme Court in State of Uttar Pradesh v Harish Chander AIR 1996 SC 2173.
We have also heard Mr. Malik Abdul Karim, learned counsel for the respondent, who submits that the delay of seven months in filing the Letters Patent Appeal should not be condoned. According to him, the cause shown by the appellants is not satisfactory. The learned counsel submits that the State could have filed the appeal in time. He submits that the law of limitation should be applied with all its rigour and the delay of seven months in filing the Letters Patent Appeal in this case should not be condoned. The learned counsel relies on the decision of the Supreme Court in P.K. Ramachandran v State of Kerala AIR 1998 SC 2276 in support of his above contention. He submits that courts have no power to extend the time of limitation on equitable grounds.
We have carefully considered the rival submissions. Section 5 of the Limitation Act empowers the court to admit an appeal or an application after the prescribed period, if it is satisfied that there was sufficient cause for not preferring it within such period. The power to condone delay has thus been conferred on the court and authorities in order to enable them to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the courts and authorities to apply the law in a meaningful manner which subserves the ends of justice. A justifiable liberal approach is, therefore, necessary in the matter of condonation of delay. Generally delays in preferring appeals should be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. As held by the Supreme Court in G. Ramegowda v. Special Land Acquisition Officer AIR 1988 SC 897, the expression "sufficient cause" must receive a liberal construction so as to advance substantial justice. In the above decision, the Supreme Court also emphasized the need of giving due recognition to the facts which are peculiar to and characteristic of the functioning of the Government while considering sufficiency of the cause for delay in litigations to which Government is a party. The following observations of the Supreme Court in this connection are pertinent:
" In litigations to which Government is a party there is yet another aspect which, perhaps cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.... Therefore, in assessing what, in a particular case, constitutes sufficient cause for purposes of section 5 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 impermissble. It is rightly said that those who bear responsibility of Government must have a little play at the joints. Due recognition of these limitations on Governmental functioning - of course, within a reasonable limit- is necessary if the judicial approach is not rendered unrealistic. It would , perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process...."
In State of U.P. v. Harish Chandra AIR 1996 SC 2173, it was reiterated:
"It is undoubtedly true that the applicant seeking for condonation of delay is duty bound to explain the reasons for the delay but as has been held by this Court in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit the Court should consider the question of condonation from that perspective."
On the facts of that case it was observed:
"That apart the respondents themselves approached the High Court in the year 1990 making grievance that they had not been appointed even though they are included in the Select List of 1987 and 1987 list itself expired under the Rules on 4.4.1988. In this view of the matter and in view of the merits of the case we are of the opinion that sufficient cause has been shown for condoning the delay and accordingly we have condoned the delay."
In N. Balakrishnan v. M. Krishnamurthy JT 1998 (6) SC 242, the Supreme Court observed:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory... ."
The law was summed up in the following words:
" Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.... It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation."
The Supreme Court pointed out:
"While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
In P.K. Ramachandran v. State of Kerala AIR 1998 SC 2276, the Supreme Court, however, gave the following note of caution:
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
It is clear from the above decisions of the Supreme Court that the expression "sufficient cause" in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to deliberate tactics to seek their remedy promptly. While considering a case for condonation of delay, the Court must always remember that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not sufficient to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. Moreover, as held by the Supreme Court in P.K. Ramachandran v. State of Kerala (supra), it should be kept in mind that the period of limitation cannot be extended on equitable grounds. The discretion exercised in the matter of condonation of delay should be proper and judicious.
In the instant case, the impugned order was passed ex-parte on 31-7-1996. The appellant came to know of the same on 12-11-1996. The Additional Secretary to Government, Revenue Department asked the Sub-Divisional Magistrate, Sopore to explore the possibility of filing Letters Patent Appeal in the matter by his letter dated 28-1-1997. By communication dated 27-2-1997, the Sub-Divisional Magistrate, Sopore was directed to take necessary steps to file the Letters Patent Appeal. The Sub-Divisional Magistrate, after consulting the legal experts, informed the Government Advocate to file the Letters Patent Appeal. The Government Advocate prepared the appeal and sent it to the Sub-Divisional Magistrate by post. The Letters Patent Appeal was received back by the Government Advocate on 23-4-1997 and it was filed on 24-4-1997. The learned counsel for the State, Mr. Hussain, states that in the instant case there was no negligence, deliberate or gross inaction or lack of bona fides on the part of the appellant State or its counsel in filing the Letters Patent Appeal.
We have carefully considered the cause shown for delay by the appellant-State. On perusal of the facts and circumstances of the case, we are satisfied that in the instant case there was no gross negligence or deliberate inaction or lack of bona fides on the part of appellant - State in filing the Letters Patent Appeal. Moreover, in this case the fact that the respondent (writ-petitioner) himself had challenged the action of the Government by filing the writ petition after about six years, is also a relevant factor in considering the prayer of the appellant-State for condonation of delay. In view of the above, we are satisfied that the cause shown is reasonable and satisfactory. It can be regarded as "sufficient cause" within the meaning of section 5 of the Limitation Act.
Accordingly, the delay is condoned on payment of costs of Rs.1,000/-. Costs may be deposited in the Advocates Welfare Fund within one week from today. The application for condonation of delay is, accordingly, allowed.
The Letters Patent Appeal may be numbered on deposit of the costs and be listed for admission in due course.