Serial No. 09

Regular Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CONDL No. 305/2017

Dated: 4

th

of October, 2023.

Abdul Rashid Dar

… Appellant(s)

Through: -

Mr Shabir Ahmad Najar, Advocate.

V/s

State of Jammu & Kashmir and Ors.

… Respondent(s)

Through: -

Mr Sajjad Ashraf Mir, GA; and

Mr Syed Reyaz Khawar, Advocate with

Mr Abid Hameed, Advocate.

CORAM:

Hon’ble Mr Justice Tashi Rabstan, Judge

Hon’ble Mr Justice Rahul Bharti, Judge

(JUDGMENT)

(Tashi Rabstan-J):

01. The instant application has been filed on behalf of the

applicant/ appellant, who was the respondent No.8 in the writ petition,

seeking condonation of 645 days delay in filing the letters patent appeal

against a judgment dated 11

th

of December, 2015 passed by the learned

Single Judge in SWP No. 25/2010 filed by the writ petitioner, who is now

the respondent No.5 herein.

02. The precise ground taken in the application is that the applicant

was never ever served by the writ court and, therefore, he was neither aware

about the pendency of the writ petition nor of the passing of the impugned

judgment by the learned Single Judge. Since, the knowledge of the case

related development has come to the notice of the applicant at a belated

stage, as such, the present application is filed seeking condonation of delay

in filing the desired letters patent appeal against the impugned judgment so

passed by the learned Single Judge, of which the applicant/ appellant feels

aggrieved.

CONDL No. 305/2017

Page 2 of 5

03. Objections to the instant application stand filed on behalf of

the non-applicants/ respondents, resisting and controverting the averments

made in the application.

04. We have heard the learned counsel for the parties and have

perused the pleadings on record. We have also have gone through the writ

court record.

05. From the record, it is discernible that initially notice, at pre-

admission stage, was issued to all the respondents in the writ petition on

12

th

of January, 2010, including the respondent No.8/ the applicant herein.

However, despite service of the said postal notice, none had appeared

before the writ court on behalf of the respondent No.8 even after expiry of

the statutory period. Accordingly, the respondent No.8 was deemed to have

been served.

06. Subsequently, the writ petition was admitted to hearing on 9

th

of December, 2011 and, accordingly, post admission notice was also issued

and addressed to all the respondents in the writ petition.

07. As per the note of the Registry dated 14

th

of February, 2012,

post admission notice was served on all the respondents, including the

respondent No.8/ applicant herein. The Registry, in terms of its note dated

30

th

of March, 2012, reported that none had caused appearance on behalf of

the respondent No.8/ applicant herein despite deemed post admission-

service.

08. Coming to the contents of the application in hand, admittedly,

there has been a long-running delay of 645 days in filing the appeal, but no

satisfactory explanation has come forward on that count except for routine

play of words and phrases. No doubt, a liberal approach is meant to be

adopted in the matter of condonation of delay provided there is no

deliberate negligence/ inaction or lack of bonafides on the part of the

applicant. But, in the instant case, the applicant, at his pleasure, took his

own time to formulate an opinion that the appeal is to be filed. It has

CONDL No. 305/2017

Page 3 of 5

nowhere been stated as to by what the applicant was prevented earlier to

take such a decision.

09. It cannot be disputed that the law of limitation has to be

applied with its intent and purpose as prescribed. The Courts cannot come

to the aid and rescue of an indolent applicant, whose application for

condonation of delay does not even spell out sufficient cause. The approach

of the applicant in making such application is casual and cryptic and taking

it for granted that condonation of delay in legal matters is a matter of just

demand and supply.

10. The law laid down by the Hon’ble Supreme Court in case

reported as ‘AIR 2011 SC 1237’ enunciates the aforesaid principle and it

lays down as follows:

“…….. 3/ This appeal emanates from the judgement of the

Division Bench of the Guahati High Court (High Court of Assam,

Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal

Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The

appeal filed by the Union of India was dismissed by the High Court

because of inordinate delay of 239 days. The Division Bench of the High

Court, while dismissing the appeal, has observed as under:

“We have gone through the contents of the

petition. The delay occurred because of the respondents

took their own sweet time to reach the conclusion whether

the judgement should be appealed or not. It is not that they

were prevented by any reason which is beyond their

control to take such a decision in time. Even otherwise, on

merits of the case also it does not appear to have any

tenable ground of appeal. In the circumstances, we do not

see any merits in this petition.”

4/ We have also gone through the condonation of delay

application which was filed in the High Court. In our considered view,

the High Court was fully justified in dismissing the appeal on the ground

of delay because no sufficient cause was shown for condoning the delay.

………………..

6/ The Union of India ought to have been careful particularly in

filing this Civil Appeal because the Division Bench, by the impugned

order, has dismissed the appeal before it on the ground of delay. It is a

matter of deep anguish and distress that majority of the matters filed by

the Union of India are hopelessly barred by limitation and no satisfactory

explanations exist for condoning inordinate delay in filing those cases.”

CONDL No. 305/2017

Page 4 of 5

11. Resort can also be had to an elaborate and a lucid judgement of

the Hon’ble Apex Court, reported in ‘(2013) 12 SCC 649’, the relevant

excerpts of which are as under:

“……….. 21.2. (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.

21.9. (ix) The conduct, behavior 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.

21.10. (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.

………………

21.12. (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.

21.13. (xiii) The State or a public body or an entity representing a

collective cause should be given some acceptable latitude.

22.1 (a) An application for condonation of delay should be drafted

with careful concern and not in a haphazard manner harboring 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.

………………..

31. Neither leisure nor pleasure has any room while one moves an

application seeking condonation of delay of almost seven years on the

ground of lack of knowledge or failure of justice.”

12. In the case in hand, the applicant has been clearly absent

minded in pursuing his claim and case within time and the explanation

offered for the default and delay in filing the appeal is worth not reading,

lest considering. The has been drafted recklessly without giving a though to

account for the dates and details of the grounds alleged in it and an easy

recourse has been had with leisure and pleasure in moving the application.

This appears to have been done only to scuttle the judgment dated 11

th

of

December, 2015 passed by the learned Single Judge.

CONDL No. 305/2017

Page 5 of 5

13. Viewed in the context of what has been said and stated above,

we are of the considered opinion that the applicant fails to explain the long

stretch delay of 645 days in filing the appeal. That being so, the application

for condonation of delay in filing the appeal is rejected and, as a

consequence, the letters patent appeal (LPA) shall also stand dismissed as

barred by time.

(Rahul Bharti) (Tashi Rabstan)

Judge Judge

SRINAGAR

October 4

th

, 2023

“TAHIR”

i. Whether the Judgment is reportable? Yes.

ii. Whether the Judgment is speaking? Yes.