Director Health Services Kashmir And Another vs Iqbal Ahmad Baqal

Civil Second Appeal is sought to be filed after delay of 13 years, 09 month and 20 days.

A suit for declaration was filed by plaintiff/respondent before the Court of City Judge, Srinagar (for short “Trial Courtâ€) on 01st July, 2001,

which suit was decreed on 05.6.2003. The said suit was decreed in ex parte as defendants after they were duly served remained absent and ex parte

proceedings were initiated against them. On 17.10.2001, evidence in ex parte was recorded. Defendants filed their application seeking setting aside of

ex parte proceedings, but thereafter remained again absent, which resulted in dismissal of their application seeking setting aside of ex parte

proceedings on 07.2.2003. So, it is clear from the proceedings that defendants had knowledge of the pendency of the suit before the Trial court as

they had filed an application seeking setting aside of the order whereby defendants were proceeded in ex parte.

After suit was decreed, the defendants did not choose to file the Appeal throwing challenge to the aforesaid judgement and decree within the time

prescribed under the Limitation Act. The Appeal, however, was filed beyond the limitation period before the court of Principal District Judge, Srinagar

(for short “1st Appellate Courtâ€). The said Appeal was dismissed by the 1st Appellate Court, on the ground that the Appeal being time barred and

even no application, explaining cause of delay or seeking condonation of delay, was filed by the appellant.

It appears that the appellant, when the execution proceedings were taken up, filed a Revision Petition before the court of learned Principal District

Judge, Srinagar, which was also dismissed. Thereafter, writ petition was filed before this Court, which too was dismissed in default. For restoration of

writ petition, an application seeking condonation of delay of 550 days was filed, which was dismissed on 23.4.2015.

So, from the record on file produced by the appellant, itself, it is clear that from the beginning appellant has been casual in contesting the case than

prosecuting the appeal or even the writ petition.

After having failed in the First Appeal, Revision and writ petition, the appellant is now seeking extension of 13 years, 9 months and 20 days in filing

the Appeal by condoning the said delay. The delay is sought to be condoned by the defendants/appellant on the following grounds:

a) That the suit was not maintainable as the State of J&K was not at all impleaded as a party defendant to the suit, as the decre/judgment is nullity;

b) That as the impugned decree/judgment is nullity, same is not executable because the plaintiff had left the job when he failed to join the office of

Block Medical Officer, Beerwah here he was transferred for further duties from the appellant Directorate office and instead instituted the civil suit by

concealing real facts and misrepresenting the material facts;

c) That without issuing 80 CPC notice to the State through Chief Secretary as mandated by the law, suit cannot be maintained and the impugned

decree is nullity against a public functionary in absence of the State being a party to a suit;

d) That the decree/judgment is without jurisdiction for the reason that the plaintiff was holding the post of Junior Assistant on Adhoc basis and could

not have maintained the suit to seek appointment against a higher post of Law Officer/Legal Assistant, against which he was never appointed by the

competent authority that, too, when such a post was not available on the staff strength/establishment of the Directorate of Health Service, Kashmir-

Srinagar. Even the plaintiff holding the post of Junior Assistant (Adhoc) without there being express order of extension could not claim continuation

and emoluments;

e) That the Ld. Court below has proceeded to pass the decree/judgment not only on flimsy grounds, but also on mere conjecture and surmises, which

also renders the decree and judgment liable to be set aside;

f) That having regard to the peculiar facts and circumstances of the case, instead of dismissing the civil first appeal, it was very important for the

appellate court to adjudicate upon the matter on merits and allow the said appeal and set aside the decree/judgment, which was without jurisdiction and

nullity for the reasons mentioned above.

g) That the basic judgment/decree is passed in ex parte. However, even in ex parte, the plaintiff has not been able to produce the required and any

significant evidence as is apparent on the face of the impugned decree/judgment. No any official witness, especially from the appellate Directorate of

Health Services, Kashmir, where the plaintiff had worked since his initial appointment in 1990 against the post of Junior Assistant on Adhoc basis has

been produced and only two outsiders/strangers to the lis were produced, who as would be seen have no connection with the case;

h) That the Ld. Court below was bound to take cognizance of the most important fact; that the plaintiff was just an adhoc employee appointed in 1990

and the suit was instituted in 03/2001 wherein the plaintiff in a very surreptitious manner had claimed release of salary from the month of 08/1998 that,

too against the post, against which he could have never been appointed for the simple reason that there was no such post (Legal Assistant) borne on

the staff strength of the appellant Directorate, besides claiming to be allowed to mark his attendance in the attendance register, which was itself a clue

to the court, that the plaintiff was not working in the department;

i) That the appellant has shown earnestness to participate in the proceedings while filing application for setting aside the ex parte proceedings and

filing civil first appeal and also objections to the execution petition on strong facts obtaining in the case and also on forceful grounds. There was

sufficient reason for the appellate court to take cognizance of the issue and pass appropriate orders on merits of the case, but dismissal of the appeal

as time barred has caused great miscarriage of justice.

Objections have been filed. Respondent in his objections has stated that no sufficient cause has been shown to condone the delay of 13 years, 09

months and 20 days.

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

The Supreme Court in Special Leave Petition (C) Diary No. 9217 of 2020 titled The State of Madhya Pradesh and Ors. Vs. BHERULAL, while

dealing with the issue of delay in filing the appeals, has observed that the counselling to government and government authorities have fallen on deaf

ear and that the Court cannot be a place for the governments to walk in when they choose, ignoring the period of limitation prescribed. It has also

been observed that governments and their functionaries cannot claim that they have a separate period of limitation when the departments are

possessed with competent persons familiar with court proceedings. The Supreme Court, after observing the period of delay and casual manner in

which application had been worded, imposed costs on the State of Madhya Pradesh. In the above-said case, 663 days’ delay was sought to be

condoned. The Supreme Court, after deprecating the approach of State of Madhya Pradesh, dismissed the Appeal. Paragraphs 4 and 5 thereof are

reproduced hereunder:

“4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only “due to unavailability of the

documents and the process of arranging the documentsâ€. In paragraph 4 a reference has been made to “bureaucratic process works, it is

inadvertent that delay occursâ€​.

A preposterous proposition is sought to be propounded that if there is some merit in the case, the delay is to be given a go-by. If a case is good on

merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the

jurisdiction of the Court in an appropriate case to condone the delay.â€​

Having regard to what has been stated above and in view of the judgment of the Supreme Court supra, no good /sufficient ground has been shown

by the appellants/applicants to condone the un-explained and inordinate delay of 13 years, 09 months and 20 days.

In view of the above, there is no merit in the instant application which warrants dismissal, accordingly, same is dismissed.

Since application seeking condonation of delay has been dismissed, as a corollary, Appeal being time barred is also dismissed.