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Judgment
Mohammad Yaqoob Mir, J.—Impugned is the order dated 31st December, 2013 passed by the Court of District Judge, Ganderbal,
where-under application seeking Condonation of delay in preferring the appeal has been dismissed.
Precise factual background is that the respondent herein had filed a suit for declaration to the effect that his cast may be declared as 'Gujar
Tanwoli' instead of 'Khan' as recorded in the records.
Admittedly, petitioner(defendant) was represented by the counsel before the trial court who had chosen to remain absent. Thereafter matter has
been proceeded in ex parte and decreed on 7th May, 2011 in favour of respondent(plaintiff). Dissatisfied with the judgment and decree, the
petitioner - Board decided to prefer an appeal. Alongside an application has been filed for condoning the delay of 82 days.
Perusal of the impugned order would indicate that the petitioner had been given opportunity to lead evidence in support of application, which he
has not, instead has insisted that on the basis of averments of the application, affidavit and trial court record, application may be decided.
Appellate court has noticed dates i.e. suit has been instituted on 3rd June, 2010, the petitioner-defendant through counsel has appeared before
the trial court on 17th March, 2011, was to file written statement instead all the defendants have chosen to remain absent with effect from 2nd
April, 2011. When the suit culminated in ex parte decree and same was sought to be executed, only then petitioner Board decided to prefer the
appeal.
No explanation is forthcoming from the application seeking Condonation so as to justify absence or cause for absence before the trial court nor
any cause is forthcoming so as to constitute a sufficient cause for condoning the delay of 82 days. Application seeking Condonation appears to be
casual. It is not mentioned in the application as to why the counsel representing the petitioner Board had not chosen to appear before the trial
court. Who was the counsel for the petitioner engaged by Board who had appeared before the trial court is not divulged. The problem is further
compounded by the fact that the Board before the learned appellate court has not chosen to lead any evidence in support of the application so as
to justify delay.
It is settled that 'sufficient cause' shall be construed liberally so as to advance cause of justice. When technical and substantial justice is pitted, it
is the later which has to be preferred but for an important principle i.e. while liberally construing sufficient cause for condoning delay, it is to be
made clear that no indolence or slackness is attributable to the seeker thereof otherwise law of limitation will be illogical and otiose. When a party
has chosen to sleep and then to wake up from the deep slumbers after a considerable period of time, there is no scope for construing 'sufficient
cause' liberally to the disadvantage of the party opposite.
While going through the documents available, it is clear that cause of justice would be advanced by not allowing the application for Condonation
of delay. Learned appellate court has properly appreciated the entire gamut of the case. Neither irregularity is noticed nor any miscarriage of
justice will occasion by upholding the order impugned.
Revision being devoid of merit is dismissed along with connected CMP.