Mohammad Qasim Paswal vs Mohammad Ramzan Wani

Puneet Gupta, J

The Civil First Appeal has been filed against the impugned judgment and decree dated 11.06.2016, passed by the learned Court of Additional District Judge, Anantnag in Civil Suit No.13/N. The appellant seeks setting aside of the same.

The application for condonation of delay has been filed along with the appeal stating therein that the appellant had engaged Mr. Raja Mohd. Maqbool, Advocate for prosecuting his case before the trial Court. The applicant was told by the counsel that there is no need to appear in the Court. It is also submitted that his brother-in-law was admitted in the hospital from April, 2016 till July, 2017. On 29.07.2017, he came to know of the passing of the impugned judgment and decree when he received warrants from the executing Court. The copy of the order applied on 29.07.2017 was provided to him on 01.08.2017. The applicant contacted another counsel who advised him to file petition under Article 227 of the Constitution which was however withdrawn on 24.05.2022. Due to the aforesaid facts and circumstances the delay has occurred in filing the present appeal.

The respondent has appeared through counsel and contested the present application in hand. It is submitted that as per own showing of the applicant he had acknowledge of passing of the judgment and decree on 29.07.2017 and also received the copies of the same on 01.08.2017. The applicant had also filed an application for setting aside of the judgment and decree along with the condonation application before the trial Court and which is still pending for disposal. There is no explanation as to what prevented the applicant from approaching this Court from 29.07.2017 till filing of the present appeal. The appeal is not maintainable as the application for setting aside of the judgement and decree is still pending for disposal before the trial Court.

The learned counsel appearing for the appellant has indeed reiterated the submissions made in the condonation application during the course of arguments. It is submitted that sufficient cause has been shown for not taking effective steps for filing present appeal even after the judgment and decree came to be passed by the trial Court. The period during which the petition under Article 227 remained pending is to be excluded for the purpose of filing of the appeal. Further, that he had been given liberty to avail the remedy available to him while the petition under Article 227 was withdrawn on 24.05.2022 before the Court.

The learned counsel appearing for the respondent has argued that the appeal is grossly belated one and without any justification as no worthwhile explanation is forthcoming for not filing the appeal within the period of limitation.

It is suffice to mention herein that the suit filed by the respondent-defendant was allowed vide judgment and decree dated 11.06.2016. The present appeal has been filed on 21.06.2022.

The applicant has been able to demonstrate before the Court as to whether sufficient cause is made out for allowing the condonation application.

The present appeal has been filed after five years of the passing of the judgment and decree. The stand taken by the applicant-defendant is that the counsel Mr. Raja Mohd. Maqbool, Advocate, who had been engaged to prosecute the suit informed him that he was not required to appear in the suit. The application also mentions of the illness of brother-in-law of the applicant and who remained admitted in the hospital from April, 2016 to July, 2017. The applicant has himself admitted in the application in hand that he came to know of the passing of the decree when he received warrants from the executing Court and consequently, he approached the trial Court for providing copy of the judgment and decree which were provided to him on 01.08.2017. The appellant did not file appeal against the judgment and decree even after he came to know of the passing of the same against him on 29.07.2017. The applicant had obtained copies of the orders on 01.08.2017. Instead, the applicant herein filed petition under Article 227 of the Constitution and the said petition came to be disposed of vide order dated 24.05.2022 as the counsel for the petitioner withdrew the petition with liberty to avail the remedy which may be available to him under law.

It is pertinent to mention herein that the petition under Article 227 was filed in the year 2021. The applicant was erroneously advised by the counsel to file the petition under Article 227 is the contention raised in the application and also through the arguments submitted on behalf of the applicant. It is only after the petition was dismissed on 24.05.2022 that the present appeal along with present application was filed before this Court on 21.06.2022. The court is not in agreement with the argument of learned counsel for the appellant that the circumstances mentioned in the application are sufficient to condone the delay in filing the present appeal. The court for the sake of argument gives leverage to the argument of the applicant that the counsel engaged by him before the trial Court did not appear before the said Court as a result the decree came to be passed in favour of the plaintiff in ex-parte and he came to know of the passing of the decree on 29.07.2017 when he received the warrants in the execution petition filed by the respondent herein. The applicant has mentioned in the application that he was advised by a counsel that he should approach this Court under Article 227 for challenging the decree passed against him. The wrong advice allegedly led the applicant to file the petition which was withdrawn as dismissed on 24.05.2022. The applicant does not mention the name of advocate who had advised him to file the petition under Article 227. The affidavit of the said advocate to this contention is not filed by the applicant with the present application.

The perusal of the file reveals that in the petition under Article 227, Mr. Aswad Attar, Advocate had appeared when the initial order was passed and even when the final order came to be passed on 24.05.2022 when the petition was dismissed as withdrawn. The advice was given by Mr. Aswad Attar, Advocate who appeared in the petition initially and also when the same was disposed of is not made known to this Court. The wrong advice of the counsel if is to be considered as a reason for the applicant to avail the remedy at any point of time against the order challenged by him then of course, it will be very convenient for the party to get off the hook of the limitation period prescribed for availing the proper remedy. The very purpose of the provisions of limitation Act get defeated if the argument of the applicant is to be allowed by the Court. The wrong advice of the counsel cannot obliterate the provisions of law. The wrong advice of the counsel as alleged in the application cannot otherwise also come to the aid of the applicant herein as the petition under Article 227 was filed only after nearly four years of the passing of judgment and decree impugned in the present appeal, meaning thereby that the appellant did not intend to pursue any remedy against the decree passed by him and was satisfied with the same. It dawned upon him in the year 2021 only to seek advice to avail the remedy against the judgment and decree passed on 11.06.2017 though the applicant claims that he came to know of passing of the decree on 29.07.2017. The provisions of Limitation Act if not to be construed narrowly but liberally as argued on behalf of the applicant but at the same time, the Court is of the view that they cannot be stretched to the extent that the application filed for condonation has to be allowed even if the applicant fails remotely to make out sufficient reason for allowing the application. It is not that every circumstance can be excused to condone the delay in filing the application as the party in whose favour the judgment/order has been passed a right is accrued on the basis of the judgment/decree passed in his favour when the same attains finality after limitation period is over and the remedy against such order which may be available to the party is not availed within the limitation period.

The learned counsel for the appellant has also made submission during the course of argument that the Covid period and the period during which the petition under Article 227 remained pending before this Court are required to be excluded while computing period for limitation for filing the appeal. The argument fails miserably. The time prescribed for filing the appeal against the decree had expired in 2017 itself whereas the Covid pandemic started from ending March, 2020. Thus, no ground is made out on the above said plea. The time spent in pursuing the petition under 227 cannot be also excluded for computing the period of limitation as the Court had not observed while disposing of the petition that time spent in pursuing the matter under Article 227 shall be excluded while computing the period for availing any other remedy before the competent Court of law if there is any time period prescribed for availing such remedy available under law. This argument also has no force.

The court has no hesitation in holding that the applicant herein has not been able to demonstrate that the delay in filing the appeal is required to be condoned on the basis of the wrong advice given by the counsel as the court has held above that not only the plea of wrong advice is untenable, the applicant did not choose to avail even that remedy for nearly three years after he came to know of passing of judgment and decree. The plea raised by the applicant in the preceding para has also been held untenable and devoid of merit.

Looked from any angle, the application filed for condoning the delay in filing the appeal is without merit as the Court is not satisfied that there was sufficient cause for not filing the appeal within the time prescribed for the same.

The learned counsel for the appellant has referred to judgment in case titled Collector, Land Acquisition, Anantnag and another Vs. Mst. Khatiji and others reported as (1987) 2 SCC 107 wherein the Hon’ble Supreme Court held on facts that there is sufficient ground for condoning the delay in filing the appeal before the High Court against the award passed by the Arbitrator.

In (2010) 6 SCC 789 titled Improvement Trust, Ludhiana Vs. Ujaggar Singh and others and (2014) 14 SCC 127 titled Dhiraj Singh (Dead) through Legal Representatives and others Vs. State of Haryana and others. The Apex Court held that the each case is required to be considered on its own merit.

In (2012) 5 SCC titled Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, the Apex Court set aside the order of the High Court whereby the delay in filing the appeal by the respondent was condoned. The Court observed that the sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

The counsel for the appellant was also at pains in arguing that the appeal should in any case being heard on merit as the relief claimed by the respondent-plaintiff in the suit could not have been granted.

It is very convenient to agitate that the merits of the main case should be considered but it is an attempt to wriggle out of the failure in explaining the sufficient cause for not availing the remedy before the proper competent Court within the statutory period. Every flaw even if occurs in the judgment/order may not require cognizance by the Court.

The application is without merit and same is, accordingly, dismissed. Resultantly, the appeal filed by the applicant also stands dismissed.