State of J&K and others vs Ghulam Mohammad Khuru

B.L. Bhat, J.—Through the medium of this application, the petitioner/appellant through their counsel have sought indulgence of this court to

condone the delay and to extend period of limitation in presenting the appeal against the decree and judgement recorded by the learned District

Judge, Baramulla on 16.06.1994 in Civil Original Suit No. 50 of 1983 titled as ""Ghulam Mohammad Khurti vs. State of J and K and others ""for

recovery of Rs. 38,175/together with interest at the rate of 15 % per annum. It is interalia maintained in the petition that the Public Prosecutor who

defending the case on behalf of the petitioner/appellant before the trial informed about the passing of the impugned decree by virtue of his

communication dated 23 07.1994 which was received by the petitioner/appellant No. 2 on 10.08.1994. That after the receipt of the said

communication on 18.08.1994, submission was made to the Superintending Engineer and to the Chief Engineer respectively for taking up the case

with the law Department for filing of appeal. That the communication of the Law Departmert was received on 26.09.1994. That on 24th, July, 7th,

14th, 26th August, 4th, 11th, 18th, 25th September, 2nd, 9th, 16th, 23rd October and 6th November, 1994 were Sundays. 15th August, 8th

September, 3rd October and from 13th Nov. upto 31st Dec. 1994 which includes the Sunday were holidays. That 25th and 27th and 31 st July,

26th August, 29th, 31st August, 25th, 16th 21st, 23rd, 24th, 27th, 30th Sept, 11th Oct. to 13th October and 03.11.1994 were Hartal (Strike)

days. That from 01.01.1995 upto 16.01.1995 the Courts were closed. That the High Court remained closed for winter recess from 02.02.1995

upto 20.02.1995. That on 20th Feb. upto 23rd Feb. 1995 learned counsel for the petitioners remained busy in the Jammu wing of the High Court.

That because of the aforesaid facts there is no wilful delay on the part of the petitioner/appellants in preferring the appeal in hand. The respondent

has resisted this application by filling his objections, wherein, he has interalia stated that the grounds put forth in the application for condoning the

delay and for the extension of time for appeal are nothing but a concocted story. He was placed on file certified copy of interim order recorded by

the learned District Judge, Baramulla in case No. 28Appeal on 02.12.1986 titled Mohmmad Rajab Singh and others: Vs. Gh. Mohmmad Singh

and another:"" pending before him for the inspection of this court.

Heard leaned counsel for the parties.

Article 156 of the Limitation Act prescribes the limitation period of ninety days for preferring the appeal under the CPC to the High Court

against the decree and order appealed from the date of passing of the said decree or order. From the perusal of the file it is manifest that impugned

judgement an decree came to be recorded by the learned District Judge, Baramulla with respect to suit in hand on 14.06.1996 and appeal against

it ought to have been filed within ninety days which means before 13th September, 1994, but it has been filed on 22.02.1995 after a period of 160

days. In considering the application for condonation of delay and extension of period of limitation under Section 5 of the Limitation Act"" hereinafter

to be referred to as ""the Act"", the test to be applied by the Court is as to whether the delay has been satisfactorily and reasonably explained by the

petitioners/appellants and as to whether the petitioners/appellants have acted diligently failing which it will deprive him, the petitioner/appellant from

seeking condonation under section 5 of the Act. Having regard to this law I find that the contentions raised by the petitioner/appellant in the bid to

explain the delay is not fanciful alone but a concoction. The explanation for delay in presenting the appeal is neither reasonable nor satisfactory. I

say so, because on their own showing it is manifest that the petitioners/appellants were having full knowledge about the pendency of the civil suit

before the court of learned District Judge, Baramulla as they were duly represented by the their counsel, the public Prosecutor, and it is admitted

by them in their application that they were informed by their said counsel about the passing of the impugned decree and order by virtue of his

communication dated 23.07.1994 which was received by them on 10.08.1994 that is to say well with in ninety days of the limitation after passing

the impugned decree. In this application, the petitioners have tried to explain the delay by enumerating the days of Sundays, Holidays, Hartal

(Strike) days and the days of vacations of the Court which fell from 24th Sept. up to presentation of the appeal at hand but have failed to

renderany explanation for the intervening working days. It is also on their own showing that they got the knowledge about the passing of the

impugned decree on 10.08.1994, that is to say, well within the period of limitation of ninety days after its passing but is remains unexplained as to

why the application for issuance of certified copy was filed on 09.12.1994 before the trial court. For the days of January, 1995 upto 02.02.1995 it

is contended by the petitioners / appellants that the courts were closed in connection with the winter vacations from 01.01.1995 upto 16.01.1995

and because of vacations of High Court from 02.02.1995 upto 20.02.1995. Again for the remaining working days there is no explanation to offer,

Moreover, when the registry of the High Court remains open during the vacations. It is interalia pleaded that on 11.10.1994 there was Hartal

(strike) at Baramulla but the certified copy of the interim order recorded on 11.10.1994 in case 28/appeal titled as ""Mohmmad Rajab Singh and

Others vs.Ghulam Mohmmad Singh and others"" recorded by the learned District Judge, Baramulla, placed on the field, reveals that the court of

learned district judge, Baramulla was sitting on this date which falsified that on this date there was Hartal (strike) at Baramulla.

True it is that the Courts should be liberal in constructing the expression ""sufficient cause"" as employed in Section 5 of the Act. For this purpose

there should be at least some cause pleaded by the party, seeking condonation which can be objectively examined by the Court for recording its

satisfaction that the explanation of delay was either reasonable or satisfactory which is the essential prerequisite to condone the delay. The two

Judge Bench of the Supreme Court consisting of Hon'ble Mr. Justice Dr. A.S. Anand (as his lordship then was) and K. Venkataswami JJ. have in

a case titled as""P.K. Ramachandram, appellant Vs. State of Kerla and another, respondents, reported in AIR 1998 SC 2276, observed as under:

Law of limitation may harshly affect a particular party but it has to be applied with all its vigour when the statue so prescribe and the Courts have

no power in extend the period of limitation on equitable grounds.

In view of the aforesaid discussion and the law, the application for condonation of delay deserves outright rejection and is accordingly dismissed

with costs. The appeal at hand hopelessly time barred is also dismissed.