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Judgment
Petitioner's land measuring 15 Marlas and 37 sqft. in Khasra No. 5 of village Theed is in the process of compulsory acquisition under Jammu &
Kashmir Land Acquisition Act. Petitioner challenges the acquisition on the ground that the notification issued under Land Acquisition Act for
acquisition of his land does not reveal in detail the public purpose for which the land is required and the notification is not published in the
Government Gazette. Challenging the acquisition on these grounds, the writ court in OWP. No. 126/2001 filed by the petitioner on 18.10.2001
dismissed the writ after both contentions of the counsels were rejected. Instead of agitating the matter further in appeal, the petitioner choose to
question the proceedings and the factum of acquisition in a regular suit. Adinterim relief of injuction against the state Land Acquisition Authorities
was rejected by the trial court (SubJudge, Muncipal Magistrate, Sgr.) and in appeal by the appellant court, against which order a civil revision
petition is pending in the High Court. The suit is pending trial before the court below. In the meanwhile, petitioner has come up with a Letters
Patent Appeal alongwith an application seeking exclusion of the time period spent in prosecuting the Civil suit and the miscellaneous applications
arising therein, specifically u/s 14 of the Limitation Act. The main argument plank pressed for sustainance of exclusion of the period of limitation of
the Letters Patent Appeal, as stated in the application and further submitted by the Senior Advocate, Mr. S.T. Hussain, is that the petitioner filed a
suit for declaration and perpetual injuction on the advice of the counsel, who, after the dismissal of the appeal against the order of the trial court,
again advised applicant to file the Letters Patent Appeal against the impugned judgment of October, 19, 2001 of the learned Single Judge.
The respondents, Lakes and Waterways Department and its authorities have in their objections stated that the application for exclusion of time is
malafide. The same counsel has been pursuing the matter in Revision before the High Court and the writ petition. The Revision as also the Letters
Patent Appeal, the two parallel proceedings, are being prosecuted which sufficiently indicate that this act is wilful and conscious enough not to
launch and prosecute the proceedings in the civil court, bonafide.
The learned counsel Mr. S.T. Hussain, Senior Advocate, submits that the time taken to prosecute the proceeding before the Lower Court has
been with due diligence and in good faith. The petitioner has, on the advice of his counsel, filed a suit, taken the proceedings and filed the revision.
It is only then that the petitioner knew that the court below is not able to proceed further in the matter and therefore again, on legal advice,
applicant filed the Letters Patent Appeal alongwith the application for condonation of delay. The learned counsel further submits that the case also
falls u/s 5 of the Limitation Act and the period of limitation merits to be condoned on sufficiency of cause made out by the petitioner.
The respondent's counsel has put up a stout defence to the submission made by the petitioner's counsel, in as much as the counsel submits that
the land with built up house in question is required for development of Dal Lake by Lakes and Waterways Development authorities. The petitioner
on one or other pretext is taking proceedings and questioning mode and method to acquire the land for the public purpose as indicated above. The
claimed exclusion of time u/s 14 of the Limitation Act is nothing but to protract the proceedings malafide. The elements of due diligence and good
faith is wanting in the matter.
There is hardly any dispute with regard to the fact that whether the time spend in prosecuting the civil suit and other miscellaneous civil
proceedings connected thereto, can be excluded in computing the prescribed period of limitation, in the facts and circumstances of the case, lies in
a small compass. The petitioner challenged acquisition of the land with her house in writ petition (OWP) No. 126/2001. when she failed in the writ
on 19th October, 2001, she did not opt to file the Letters Patent Appeal against this dismissal order in time. As per petitioner, the reason being
that her counsel advised her to leave the matter there and instead to pursue the matter in a civil suit, she filed suit for declaration and perpetual
injunction before the court below. She also moved an application for interim relief. However, she failed to get the relief from the trial court where
her prayer was rejected on 08.03.2002. She filed an appeal against the order before the forum at Srinagar. Again, the appeal was dismissed on
30.03.2002. It was thereafter that her counsel again advised her to file the Letters Patent Appeal. It is seen from the application that filing and
pendency of the Revision petition against the order of the appellate court of District Judge, in temporary injuction matter in the suit, is not
mentioned anywhere in the application. The name and particulars of the counsel, who tendered above legal advice to the petitioner, is not also
given in the application or in the affidavit. The main suit for declaration and injuction is pending, as admitted by counsel for the parties.
Nonapplicant's counsel submits that withholding of information of factum of pendency of the suit and the Revision petition is deliberate. There is
no good faith in as much as the Letters Patent Appeal is filed with the malafides to gain time and protect the proceedings at the cost of public
interest.
For applicability of Section 14 of the Limitation Act, the following conditions have to coexist :
ii) The parties must have been prosecuting another civil proceedings with due diligency.
ii) The earlier and the latter proceeding have to be founded on same cause of action.
iii) The proceedings must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature is unable to
entertain it.
The third condition, as above, is not fitting in, in the facts and circumstances of this case. It is nobody's case that the matter should not be
entertained due to defect of jurisdiction or other cause of like reason. The civil suit, as also the revision, is pending before the courts below, It
cannot be even said that the civil proceedings pressed in aid for exclusion of time have been with due diligence. Exercise of due care and attention
is wanting in this case. When it is vaguely mentioned in the application that some counsel, without naming the counsel, advised the applicant, to file
the suit and challenge the acquisition proceedings therein, rather than to pursue the matter in the Letters Patent Appeal against the judgment of the
learned Single Judge in writ jurisdiction, no ground for exclusion of time can be said to be made out. The record infact shows that the whole
exercise is with a view to thawart the efforts to Lakes and Waterways Departmental authorities to utilize he land in question for development of the
dal Lake The individual interest has to give way to public interest, moreso, when the petitioner is being compensated for compulsory acquisition of
the land in question in exercise of powers under Jammu and Kashmir Land Acquisition Act.
The learned counsel Mr. S.T. Hussain, submits that the matter may be dealt with Section 5 of the Limitation Act and the period of limitation
taken on legal advice may be excluded. However, we do not find overselves in agreement with what Mr. Hussain states. The application for
exclusion of time specifically and unequivocally states that time spend in prosecuting the other civil prodeedings before the courts below, may be
excluded u/s 14 of the Limitation Act. Besides, the wrong advice can be no basis to condone the delay as in this case. Even the counsel, who is
stated to have advised the petitioner, is not mentioned either in the application or in affidavit filed in support of the application for exclusion of the
delay. There is a vague mention in the application about this matter. We do not find that the mistake in not filling the Letters Patent Appeal in time is
bonafide. No due care and attention is taken in this matter. There is no such rule that every wrong advice given by a legal advisor/lawyer, will
necessarily amount to sufficiency of cause for condonation of delay. There is no straitjacket formula for condoning the delay and treating the cause
as sufficient cause. Whether wrong legal advice can constitute sufficient cause would depend on the facts and circumstances of a case, wherein
such question is raised.
The authority cited, Ramnathan Sao and others v. Gobardhan Sao {AIR 2002 SC 1201) by Mr. S.T. Hussain for the purpose that the
expression ""sufficient cause"" is to receive liberal construction with a purpose to advance substantial justice, is not applicable to the facts and
circumstances of this case. Even so it is observed in this case that :
Thus it becomes plain that the expression 'sufficient cause' within the meaning Section 5 of the Act or Order 22 Rule 9 of the code or any other
similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is
imputable to a party, in a particular case whether explanation furnished would constitute 'sufficient cause' or not will be dependant upon facts of
each case. There can not be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps"".
In the above view, the motion is disallowed and as foretiorari the Letters Patent Appeal shall also stand disposed of.