State Of J&K And Others vs Gh. Mohammad Sheikh

Tashi Rabstan, J

Condonation of delay in directing an Appeal against Judgement and Decree dated 21st December 2017, passed by Principal District Judge,

Anantnag (for succinctness “Trial Courtâ€) in a civil suit titled Gh. Mohammad Sheikh v. State of J&K and others, is beseeched for in application

on hand.

Contents contained in instant application beseeching condoning of delay are that after having received copy of impugned judgement, question of

filing Appeal was examined by appellants in light of record and in the process, appellants were required to collect records from various subordinate

offices and also to obtain legal advice from the Department of Law, Justice and Parliamentary Affairs. It is also contended in application that

examination of the matter and consideration of question of filing the Appeal at various levels led to consumption of time. The Law Department is

stated to have considered the matter on its merits and decided to challenge the judgement and sanction to file Appeal was given by Law Department

vide letter no.LD(Lit) 2002/276-HME dated 18th January 2019. It is averred that counsel took up the matter with appellants for providing relevant

record drafting the appeal and filing it before this Court and after receiving relevant records, counsel took some days to draft and file Appeal and,

therefore, delay has not been caused in filing appeal deliberately, wilfully or intentionally. According to applicants/appellants, matter covered by appeal

involves very important question of law, which require authoritative adjudication of this Court.

Objections, in opposition to application for condonation of delay, have been filed by respondent, insisting therein that there is more than one year

delay in filing the Appeal. It is insisted that reasons given by applicants in application for condoning delay do not constitute sufficient ground to

condone delay and that merely sanction to file appeal was given by the Law Department on 18th January 2019, after a period of one years, would not

absolve applicants from offering sufficient reasons and grounds for delay in filing the appeal.

I have heard learned counsel for parties and considered the matter.

A civil suit, as is gatherable from perusal of the file, filed by respondent before Trial Court, was decreed vide judgement 21st December 2007. An

appeal as was felt to be filed by appellants, has, however, been preferred after a delay of 448 days with an independent application to condone the

delay.

The above milieu takes this Court to the Code of Civil Procedure to be gone through and discussed. Pertinent procedure concerning Appeals from

original Decrees is enunciated in Part VII of the Code. A right to appeal in terms of Section 96 is a substantive right and not a procedural matter.

Section 96 does not refer to or enumerate a person, craving to file an appeal. In order to sustain an appeal, it is necessary to show that a party,

desirous of appealing, has a right of appeal and that the Court, to which he would prefer the appeal, has a right to entertain it. The procedure for filing

and deciding appeals is prescribed in Order XLI (Rules 1-37) of the Code of Civil Procedure.

Rule (1) of Order XLI says about the form of appeal and what to accompany memorandum of appeal. Rule 2 envisions about grounds to be taken

in an appeal. Rule 3 provides for rejection or amendment of memorandum of appeal. Rule 3-A, apt herein, relates to application for condonation of

delay. It provides:

“3-A. Applications for condonation of delay. â€" (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it

shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had

sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent

and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 ort rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which

the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.â€​

It is pertinent to mention here that Rule 3-A of Order XLI CPC, comprising of sub-rules (1), (2) and (3), was inserted to secure determination of

question as to the limitation at the stage of admission of appeal. Sub-rule (3) has been inserted so that the Court shall not make an order of stay till

Application for condonation of delay is decided. In this regard I am fortified by judgements rendered in the cases of S.M. Iqbal v. Firdous Ahmad

Shah, SLJ 1995 299; and S.M.Chopra v. Huda & anr, 2016 (2) CPR(NC) 345. It has been held that an appeal filed beyond limitation period must not

only be accompanied by an application setting forth the facts on which appellant relies to satisfy the Court that he had ‘sufficient cause’ for not

preferring the appeal within limitation period, but even no stay should be granted by the Appellate Court unless application for condonation of delay is

allowed. Therefore, Rule3-A envisages that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be

accompanied by an application setting forth the facts on which the appellant relies to satisfy the Court, that he had sufficient cause for not preferring

the appeal within such period. It may be noted here that Order XLI Rule 3-A of the Code deals specifically with application for condonation of delay

which no doubt can be allowed in the event sufficient cause is set forth but this exercise has to be done on the point of limitation as per the provisions

of the Limitation Act.

This, thus, takes this Court to the provisions of Limitation Act, particularly Section 5 thereof. It relates to extension of period in certain cases. It

provides that an appeal or an application for a review of a judgement or for leave to appeal or an application to set-aside an order of dismissal of a suit

for plaintiff’s default or an application to set-aside a decree passed ex parte in an original suit or appeal or an application to bring the heirs of a

deceased party on the record or an application to set-aside an order of abatement of a suit or appeal or any other application to which this section may

be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when

appellant or applicant satisfies the court that he had ‘sufficient cause’ for not preferring the appeal or making the application within such period.

While considering the condonation of delay application, the merits of the case are also required to be taken into consideration, as it has been

observed in a number of judgments that substantial justice being paramount and pivotal and the technical consideration should not be given undue and

uncalled for emphasis. There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation

of delay because the courts are not supposed to legalize injustice but are obliged to remove injustice. It is true that the Courts should always take

liberal approach in the matter of condonation of delay, particularly when appellant is the State, but while considering application, the Court should also

find out as to whether there is any merit in the Appeal filed by the State or not.

The Supreme Court in the case of Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC

448, has held:

“29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy

for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly.

Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes.

Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land

losers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of

acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable

litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget

the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the

courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law

years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning

inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public

interest.â€​

Recapitulation is not essential in saying that fixing of time limit for a litigation is based on public policy for general welfare purpose. Fixing of time

limit is aiming at arresting dilatory tactics very often resorted to by parties. Its purpose and objective are to avail prompt legal remedy. Laws come to

the assistance of the vigilant and not of the sleep, as has been said by Salmond in his Jurisprudence. Public interest undoubtedly is a paramount

consideration in exercising the Court’s discretion wherever conferred upon it by relevant statutes. Pursuing stale claims and multiplicity of

proceedings in no manner subserves public interest. The public interest parameters ought to be kept in mind by the Courts while exercising discretion

dealing with an application filed under Section 5 of the Limitation Act. Dragging litigants to the Courts of law years after termination of legal

proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any

proper explanation of such delay on the ground of involvement of public revenue as it serves no public interest.

In the case of Office of The Chief Post Master General v. Living Media India Ltd., reported as AIR 2012 SC 1506, the Supreme Court has held:

“12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of

limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation

when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation,

we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party

before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or

lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the

Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic

methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation

undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and

acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for

several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to

ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated

benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.â€​

In the above case, the Supreme Court has said that though in a matter of condonation of delay when there was no gross negligence or deliberate

inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, yet the Department cannot take advantage of

various earlier decisions and the claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be

accepted given that the modern technologies being used and available and that law of limitation undoubtedly binds everybody including the

Government. The Supreme Court has further gone to say that it is right time to inform all government bodies, their agencies and instrumentalities that

unless they have reasonable and acceptable explanation for delay and there was genuine effort, there is no need to accept usual explanation that the

file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are

under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not

be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the

benefit of a few. In reiteration of earlier decisions, the Supreme Court in Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52, has held

that:

“Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence

of ‘sufficient cause’ delay shall not be condoned.â€​

The Supreme Court in the case of Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565, has observed that:

“The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary

from case to case.â€​

In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows:

“15. 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 legalise 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.

ix) The conduct, behaviour 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.

To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are:

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring 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.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically

subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency

and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner

requires to be curbed, of course, within legal parameters.â€​

From the above, it is, amongst others, apparent that 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. The conduct, behaviour 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. If grounds made in application are fanciful, the courts

should be vigilant not to expose other-side to unnecessarily face such a litigation. The scope of facts is to be carefully scrutinized. Looking from all

angles, application on hand does not offer or give ‘sufficient cause’ to condone delay in filing the Appeal.

Here the case set up by appellants is that one Fair Price Medical Shop was being run in the premises of MMABM Hospital, Anantnag, by

respondent under the name and style of M/s Riyaz Pharmacy, on the basis of permission/sanction accorded by the Government vide Order no.135-

HME of 1997 dated 19th February 1997. The said Government Order was, however, rescinded vide Government Order no.375-HME of 1997 dated

17th April 1997 and the Fair Price Medical Shop was dismissed. Aggrieved thereof, respondent filed a writ petition, diarized and registered as OWP

no.613/2017 titled Ghulam Mohammad Sheikh v. State of J&K and others, which was dismissed on 23rd December 1998. It is contended that in the

year 2000, respondent constructed a shop within Hospital Premises without any order or sanction, which was, as such, demolished. Respondent filed

another writ petition (OWP no.509/2012), which was disposed of with a direction to consider case of respondent in view of letter no.MD/Coord/7/97

dated 29th May 2000, within a period of three months. Case of respondent was considered and rejected vide Government Order no.142-HME of 2007

dated 12th March 2007, as it was intimated by Controller Drug and Food Control Organization that no Drug Licence was issued to any person to run a

Medical Shop inside the premises of MMABM Hospital, Anantnag. Respondent is said to have filed a Contempt Petition no.398/2006, in which

Statement of Facts was filed by the Department and consequently contempt was closed. It is stated that respondent filed a Suit for Declaration and

Injunction before the Trial Court, in which department filed its written statement, insisting therein that re-opening order bearing no.HD/Coord/7/97

dated 29th May 2000 is a manipulated, fabricated one and therefore respondent is not entitled to opening of his Fair Price Medical Shop within District

Hospital Premises, Anantnag. The Trial Court by impugned judgement decree suit of plaintiff, holding the right of plaintiff to raise/construct the shop

within MMABM Hospital Premises, Anantnag and directing defendants/appellants to allow plaintiff/respondent to carry out his medical shop avocation

at any suitable, convenient place within the District Hospital Premises, Anantnag, following the norms as to fixation and payment of rent for the

premises so allotted.

A civil suit, as is evident from perusal of the file, was filed by respondent before the Trial Court, stating therein that he was sole proprietor of M/s

Reyaz Traders (Pharmacy), possessing licence in terms of Rule 61(1) and 61(2) of the Drugs and Cosmetics Rules, 1945, for stocking, selling,

exhibiting and offering for sale or distribute by retail drugs; that upon recommendation of CMO, Anantnag, Government Order no.153-HME of 1997

dated 19th February 1997 was issued, giving permission for opening of a Fair Price Shop in the premises of MMABM Hospital Premises, Anantnag,

favouring plaintiff/respondent on the terms and conditions specified in the Agreement. However, by Order no.375-HME of 1997 dated 7th April 1997,

sanction for running and operating the Medical Fair Price Shop was cancelled; that he made a request for reopening, which was considered and

communication no.MD/Coord/7/97 dated 29th May 2000, was addressed by Under Secretary to Government, Health and Medical Education

Department, to Director, Health Services, Kashmir, Srinagar, giving approval for opening of Fair Price Medical Shop subject to the condition that

plaintiff/respondent would have a valid retail licence and a qualified pharmacist to dispense drugs and medicines; that a writ petition, bearing OWP

no.276/2000, was filed by few shopkeepers of Anantnag against respondent/plaintiff to cancel order dated 29th May 2000, which was dismissed vide

Order dated 4th August 2000; that respondent raised the shop and thereafter approached Medical Superintendent to fix rent, but no decision was

taken, forcing him to file the suit before the Trial Court, praying for grant of following relief:

a. For grant of leave to sue as an Indigent person, for grant of compensation to the tune of Rupees Ten lacs along with interest [for the loss/damages

as suffered by him on account of bulldozing, demolishing of the Medical shop raised and run within M.M.A.B.M. Hospital Premises, Anantnag, at the

hand of Respondents] in Quite an arbitrary, illegal and unconstitutional manner.

b. Declaration to the extent of rescinding of the order bearing number 153-HME of 1997 dated 19.2.1997 vide order bearing No.275-HME of 1997

dated 7.4.1997 at the hand of Respondent No.1 as illegal, arbitrary, not in consonance to the constitutional parameters and as such holding it void, non-

est in the yes of law.

c. Declaration to the extent of holding of the order bearing NO.142-HME of 2007 dated 12.3.2007 issued by Respondent No.1, as illegal, arbitrary,

unconstitutional, void, non-est in the eyes of law and at the same time holding the right of the petitioner/plaintiff to raise and continue his lawful medical

avocation in the line of pharmacy as Retail outlet, within M.M.A.B.M. Hospital/Anantnag, premises, vide order No.HD/Cood/7/97 dated 29.5.2000,

issued by Respondent No.1.

d. Declaration to the extent of holding the Right of the petitioner to hold the land underneath the shop, at any other alternate site (if previous site not

available) within M.M.A.B.M. Hospital premises Anantnag, as per J&K Land Grants Act and the rules framed thereunder.

e. Mandatory Injunction to allow the petitioner to raise and run the Medical Fair price shop under the name and style of Reyaz Pharmacy within

M.M.A.B.M. Hospital premises at Anantnag, as such, if.

f. Perpetual injunction against the Respondents/Defendants as not to cause undue interference, any unlawful restraint in smooth, normal legal

functioning of the fair price shop of the petitioner within M.M.A.B.M. Hospital premises Anantnag, after being permitted to raise and run the same of

functioning / running / operating of the said Medical shop i.e. after permitting to be raised and to run by the Respondents herein.

Written statement, appellants, in opposition to civil suit of plaintiff/ respondent, filed before the Trial Court, insisting therein that plaintiff/ respondent

has no sanction to open Fair Price Shop in the premises of the Hospital and the order referred to by plaintiff is only a manipulation. It was also

mentioned in written statement that plaintiff in the year 1997 took advantage of disturbed circumstances prevailing in the State and raised an illegal

construction, as such, no right of plaintiff had been infringed by defendants/appellants.

The Trial Court, given pleadings of parties, framed following issues for adjudication:

1) Whether plaintiff is holding a sanction to run a Fair Price Medical Shop within MMABM Hospital Anantnag vide no.153-HME of 1997 dated

19.02.1997 issued by Under Secretary to Health and Medical Education Department and was running it till its demolition on 15.11.2002? OPP

2) Whether the defendants demolished the aforesaid Fair Price Medical Shop of the plaintiff without any prior notice/order and such caused damage

to Ten Lac Rupees? OPP

3) Whether in case of no denial to the averments made in Paras 26 and 27 of the Plaint, the defendants are to pay for the liquidated damages of

Rupees ten Lacs along with interest/cost of the suit? OPD

4) Whether the Order No.HD/Cord/7/97 dated 29.05.2000, dispatched on 30.05.2000 vide No.2296 by Under Secretary to Health and Medical

Education is outcome of manipulation? OPD

5) Whether the plaintiff has no sanction for opening of the Fair Price Shop in the premises of MMABM Hospital Anantnag and the plaintiff in the year

1997 took the advantage of disturbed circumstances prevailing in the State and raised an illegal construction as such no right to the plaintiff has been

infringed upon by the defendants?

6) Whether order No.275-HME of 1997 dated 07.04.1997 issued by defendant No.1 is illegal, it being arbitrary and violative of constitutional rights of

the plaintiff? OPP

7) Whether order No.142-HMe of 2007 dated 12.03.2007 issued by defendant no.1 is illegal, it being arbitrary and violative of Constitutional rights of

the plaintiff? OPP

8) Whether the plaintiff is entitled under law to be allotted appropriate sites within MMAB Memorial Hospital Anantnag for running a shop for selling

medicines? OPP

9) Relief to which plaintiff is entitled.

The Trial Court, consequent upon framing of issues, directed parties to lead their evidence. Plaintiff/respondent produced and examined as many

as seven witnesses whereas defendants/appellants examined only two witnesses in support of its stand. The Trial Court, as is also axiomatic from

bare perusal of judgment 21st December 2017, has comprehensively and verbosely discoursed and decided all Issues ad seriatim, after taking into

account all facets of the matter. Judgement and decree passed by the Tribunal, when analysed in the context of grounds made in the accompanying

Appeal, does not call for any interference.

The judgement, which is sought to be challenged in accompanying Appeal, was passed way back on 21st December 2017 and applicants/

appellants have approached this Court on 13th June 2019. Application, on the face of it, does not show any ground muchless sufficient or cogent to

condone delay of 448 days. In such circumstances, application is liable to be dismissed.

For all that stated and said above, I do not find any merit in the present application for condonation of delay, which deserves to be rejected and the

same is, accordingly, dismissed. Resultantly, the Appeal shall also stand dismissed, being time barred.