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Judgment
Syed Bashir-ud-Din, J.—Oh complaint the J&k State Consumer Commission vide Order dated 30.6.1999 allowed non-applicant's claim
on the life of his late wife Aisha Banu, based on Health Insurance Policy taken for the year 1993. Against the award of the Commission, Civil Ist
Appeal 90/99 was filed by the applicant (LIC of India ) in the Court. The appeal was dismissed for non prosecution by Division Bench of this
Court on 18.9.2002. This application for condonation of delay, is filed alongwith restoration application, for restoration of appeal filed initially
beyond prescribed time.
The delay in filing the restoration motion beyond the prescribed time is attributed to lack of knowledge on the part of the appellant-applicant
who is stated to have got knowledge of the dismissal order dated 18.9.2002 only on 21.11.2002, when it received the summons from the State
Commission during the process of execution of the award initiated by the Commission. The Company's counsel, Hakim Riaz Ahmad advocate,
who was asked to make appearance on behalf of LIC, obtain copies of execution and to enquire about the proceeding in appeal pending before
the High Court, made a statement to State Commission that the award would be executed within one week. The company alleges this act of the
advocate was outside the brief given to him. This resulted in entire award being released and disbursed to the respondent. The applicant consulted
his legal advisor at Jammu, who advised the applicant to file restoration motion alongwith the condonation application.
The other side has filed objections. The lack of knowledge regarding dismissal of appeal on 18.9.2002 on the part of the appellant is stated to
be incorrect statement of facts. The appellant had the lawyers, services although at its disposal, when one of the Advocates prayed for seven days
time before the Forum for payment of award money. It is wholly wrong that the counsel had only authority to record appearance and obtain copies
and make enquiries regarding the appeal proceedings. As per their own case, applicant had the knowledge of dismissal of the main appeal on
25.11.2002. No reasons have been given for the inaction of the applicant to move in the matter. As to why it failed to take steps for filing
application for restoration of the appeal during the period till they consulted lawyer at Jammu and even after so consulting the lawyer, they took
another two weeks time to file condonation application with restoration application. Nothing has been placed on record to show that the two
counsels, appointed by the LIC before the Commission and in the High Court, either went beyond the brief or did not inform the LIC about the
fate of the appeal in time soon after its dismissal.
The Division Bench of this Court, while dismissing Civil Ist Appeal 90/99 filed by the LIC against the non-applicant, passed the following order:
None present for the appellant. Mr. M. A. Kapra, advocate for the respondents.
In view of the fact that the petitioner has not remained present before the court on several occasions and despite the order to the effect that last
chance is given, he has not chosen to represent and after last chanced also, he his not remained present, and even today, he is not present, hence
dismissed for non prosecution.
SGR: 18.09.02
The application for condonation of delay with restoration application is filed on 28.1.2003. The reasons and the grounds on which delay is
prayed to be condoned as quoted in paras 4, 5, 7, 8, 9, 10 and 11 are reproduced here as under:
4.That the applicant challenged the said order of State Commission in CIA No. 90/99 titled LIC v. Sofi Ghulam Nabi through Shri Manzoor
Ahmad Ganai, Advocate which was dismissed for non-prosecution by Hon'ble court vide order dated 18.9.2002. A copy of the order dated
18.9.2002 is appended herewith and is marked as Annexure-B for kind perusal.
That the applicant got the knowledge of the order dated 18.9.2002 on 21.11.2002 when summons was received in execution petition filed
before State Commission by the respondent. Immediately thereafter the applicant consulted Shri Hakim Rais Ahmad, Advocate and requested him
to cause appearance on behalf of LIC and obtain copies of execution petition and enquire about them proceedings in appeal pending in Hon'ble
High Court for further necessary action. But the Ld. Advocate, instead of getting the documents as required by LIC, made a statement in State
Commission, unauthorisedly, in execution petition on 25.11.2002 that judgment would be satisfied within one week.
That thereafter on 14.01.2003, seeing the gravity of the applicant consulted their legal Advisor at Jammu who opined that application for setting
aside the order dated 18.9.2002 whereby appeal was dismissed in default be made in the Hon'ble High Court.
That the legal advisor of the applicant at Jammu desired to see/examine the application filed in the Hon'ble State Commission, Srinagar on
10.12.2002. The said application was received at Jammu through Fax on 18.01.2001 and thereafter then present application is prepared. A copy
of the said application is enclosed as Annexure-C.
That from the date of knowledge of the dismissal in default of appeal, applicant consulted two advocates at Srinagar and thereafter one at
Jammu and thus this application is being filed.
That the counsel of the applicant failed to appear before the Hon'ble Court on a number of occasions for the reasons best known to him.
Further he also failed to inform the applicant about the order of dismissal for default.
That the delay in filing the application for restoration is neither intentional nor deliberate but is due to reasons stated herein above.
A conjoint reading of these paras would show that the applicant has claimed that the counsel did not inform the LIC about the dismissal of the
appeal on 18.9.2002. However, the LIC got knowledge of the dismissal of the appeal only on 21.11.2002. It was after the award was executed
and money paid and released to the claimant, the applicant, LIC, consulted their legal advisor at Jammu who opined that application for setting
aside the order, dated 18.9.2002, whereby the appeal was dismissed, be made in the High Court. Why the LIC failed to take any action from
21.11.2002 to 14.1.2003 for about 56 days for restoration of the appeal, no plausible explanation is on record. Mere saying that one advocate
Mr. Manzoor Ahmad Ganai was replaced by another advocate (Shri Rais Ahmed) and the later made statement before the Commission on
25.11.2002, that the execution of the award would be satisfied within one week is no explanation or reason for not seeking restoration of the
appeal or exclusion of time beyond prescribed limitation period. Even the question that the counsel has not informed the applicant about order of
dismissal of appeal is questionable proposition. No material or document is placed on record to probabilise the assertion that the counsel did not
inform the LIC of dismissal of the appeal when no affidavit or any communication from the advocate to the LIC is even placed on record. Even
affidavit is not filed by the LIC specifically to show that the counsel did not inform it about dismissal of the appeal.
It is of interest to notice that despite the knowledge of dismissal of appeal on 21.11.2002 of the applicant, the newly appointed counsel (Mr.
Rais Ahmad advocate) was supposed to have instruction to cause appearance on behalf of LIC and obtain the copies of execution petition and to
enquire about the proceedings before the High Court. This would mean that while the counsel was asked to appear in the execution proceedings
and to obtain copies thereof, he was to enquire about the proceedings in pending appeal before the High Court. When no appeal was pending
before the court which had in fact dismissed over two months back. In other words there was no direction to the counsel for taking any action
regarding restoration of appeal or to seek condonation of delay. Even appointment of a third counsel. Mr. Noor-ul-Amin Bhat, by the LIC is again
before the State Commission to resist release of the award amount which amount has been since released after the objections of the LIC were
rejected. It is only after the LIC failed to stop disbursement/release of the amount that it consulted his lawyer late on 14.1.2003. Even thereafter it
took the LIC about two weeks to file the restoration application on 20.1.2003.
In such circumstances, it cannot be said that the time beyond prescribed period consumed in filing the application for restoration is not deliberate
or intentional. The reasons advanced and explanation given as discussed above, are not indicative of due care and caution on the part of the LIC.
The occurred delay cannot be said to be for reasons beyond control of the applicant or in good faith. The explanation furnished would hardly in the
facts and circumstances of the case constitute sufficient cause and there cannot be strait jacket formula for accepting the explanation as coming
within the description of sufficient cause. Without any need to take a pedantic and hyper-technical view of the matter, it cannot be lost sight of that
by not taking steps within prescribed time valuable right has accrued to the other party which cannot be lightly in routine defeated by condoning
delay.
The authorities cited by the Ld. counsel for the applicant, Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, for
the proposition that the court should be liberal in condoning the delay, is not applicable to the facts and circumstances of this case. While no
exception can be taken to the adopted principles in the authority, but it needs to be noted that the court essentially was concerned as to what
constitutes ""sufficient cause"" within the meaning of Section 5 of the Limitation Act for condoning delay in the matter of appeal filed by the State.
The court observed that there is no warrant for the view that step motherly treatment is to be accorded when the State is the applicant and further
went on to say that in fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by
the judgment sought to be subject to appeal) and the inherited bureaucratic methodology imbued with the note making, file-pushing, and passing-
on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the
collective cause of the community, does not deserve a ""litigant-non grata status."" Their Lordships further noted that the appeal was against the
decision of the forum which had enhanced compensation in respect of the acquired land for public purpose by the State Government to the extent
of 800% and the delay of just four days was not condoned. It was in this context that their Lordships observed that in order to do justice, the
approach of the courts cannot be to scuttle decision on merits and therefore, the cause of substantial justice to be preferred against technical
consideration.
The other authority cited Kashmir Rosin and Turpentine Works v. State of J&K and Ors. 1993 SLJ 100 is not as such applicable to the facts
and circumstances of the case. The judgment turns on its own facts and covers the proposition that an application for restoration of the main case
dismissed summarily, without reasons, cannot be sustained. Here in this case, we are not concerned with such a situation. Rather the question that
stares in face is as to the sufficiency of cause or otherwise for condonation of delay beyond prescribed period in a restoration matter as placed
before the court.