State of J&K and Others vs Rasool Rather

Dr. B.P. Saraf, C.J.—This is an application for condonation of delay of about seven months in filing the 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(writpetitioner)himself approached this Court

after six years of the impugned action. 1 he 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

petitionin 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 appellantstate to file reply pursuant to notice before admission issued by the court setaside the order of termination

of service and directed the State Government to reemploy the petitioner, regularise him and extend all consequential benefits. lt is this order of the

learned Single Judge in the writ petition which is subjectmatter 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 in to 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 P. K.

Ramachandran v State of Kerala AIR 1998 SC2276 in support of tention. He submits that courts have no power to extend the time of limitation

on equitable grounds. 4. 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 isaa 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

assesing 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 Govnernment.

Governmental decisions are proverbially slow encumbered. as they are, by a considerable degree of procedural redtape in the process of their

making. A certain amount of latitude is, therefore, not impermissible. lt 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 functioningof course. within a reasonable limitis necessary if the

judicial approach is not rendered unrealistic. lt 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 UP 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 condonded

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. 5. The law on the subject 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 malafides

or it is not putforth 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 acceptanc of the explanation.

The Supreme court pointed out:

While condoning delay the Court should not forget the opposite party altogether. lt must be borne in mind that he is a looser and he too would

have incurred quite a large litigation expenses. lt would be a salutary guidline 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. but 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 malafides or it is not putforth 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 discretion exercised in the matter of condonation of delay should

be proper and judicious. In the instant case,the impugned order was passed exparte on 3171996. The appellant came to know of the same on

12111996. The Additional Secretary to the 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 28l1997. By communication dated 2721997,the SubDivisional

Magistrate, Sopore was directed to take necessary steps to file the Letters Patent Appeal. The SubDivisional 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

SubDivisional Magistrate by post. The Letters Patent Appeal was received back by the Government Advocate on 2341997 and it was filed on

2441997. 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 appellantState. On perusal of the facts and circumstances of the case, we are satisfied that there was no gross negligance or deliberate

inaction or lack of bona fides on the part of appellantStatein filing the Letters Patent Appeal. Moreover, in this case the fact that the respondent

(writpetitioner)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 appellantState for condonation of delay. In view of the above, we are satisfied that the cause shown is reasonable and

satisfactory. lt can be regarded as ""sufficientcause

within the meaning of section 5 of the Limitation Act. Accordingly. the delay is condoned on payment of costs of Rs. 1000/. 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 listed for admission in due course. Srinagar 10052000.