Ruqaya Rasool vs Mumtaz Ahmad Shah & Anr.

The petitioner/decree holder, being aggrieved of the order dated 23rd of April, 2014, passed by the Court of learned 1st Additional Sessions

Judge, Srinagar, in an application filed by the respondent No.1 herein seeking condonation of delay in filing the appeal against the judgment and

decree dated 23rd of December, 1994, challenges the same in the instant revision petition on the grounds detailed out in the petition.

The brief facts leading to the filing of the revision petition in hand are that the petitioner and the respondent No.2 herein, i.e. the sister of the

petitioner, had filed a suit for declaration and injunction against their father, namely, Ghulam Rasool Shah, before the Judge Small Causes Court,

Srinagar, which, on adjudication, has been decreed in terms of judgment and decree dated 23rd of December, 1994. Resultantly, the decreed

property as claimed is in possession of the petitioner and the respondent No.2 herein. The respondent No.1 herein, namely, Mumtaz Ahmad Shah,

as stated, having got the knowledge of the decree and judgment in the month of June, 2011, had immediately applied for a certified copy of the

judgment and decree, which, as stated, was made available to him on the 7th day of July, 2011. Thereafter, the respondent No.1 herein filed

appeal against the judgment and decree dated 23rd of December, 1994, passed by the Court of learned Judge Small Causes, Srinagar. Alongside,

the appeal, the applicant/ appellant/ respondent No.1 herein also filed an application seeking condonation of delay in filing the appeal. The cause

supplied with reference to seeking condonation of delay has reference to paragraph Nos. 6 and 7 of the application so filed before the Appellate

Court and, same being relevant, are taken note of:

That the present applicant was not made a party in the basic suit as such is not aware about the passing of the decree and could

not challenge the decree in the prescribed time period. The applicant came to know about the passing of the decree some days back

when the applicant approached the non-applicant No.2 about the settlement of the various properties left behind by the deceased

father of the applicant. The non-applicant 2 thereafter showed the papers regarding the passing of the impugned decree. The

applicant there and then noted down the date of passing of the decree and the court which has passed the decree.

That immediately thereafter the applicant applied for the issuance of the attested copy of the impugned order and the decree on

29-06-2011 and the copy of the impugned order was issued to the applicant on 07-07-2011 thereafter the appellant consulted a

lawyer and it took seven days for the lawyer to draft the appeal and in the mean time the appellant also got other documents to brief

the lawyer about the other facts of the case and the present appeal as such is well within time.

On notice, the non-applicant/ petitioner herein filed objections to the condonation of delay application, objecting the allowing of the said application

on the ground that no sufficient cause has been shown with reference to the huge delay of almost 17 years in filing the appeal. Paragraph No.3 of

the objections filed by the non-applicant/ petitioner herein, being relevant, is taken note of:

That it is humbly submitted that the allegations of fraud levelled by the applicant are totally baseless and false. It does not hold

good for the applicant to level such allegations against his esteemed father who retired as District Judge. No ground tenable under law

is raised by the applicant, therefore, the application deserves to be dismissed.

On consideration of the matter and after hearing the learned counsel for the parties and considering the material placed on record, the Appellate

Court, in terms of order dated 23rd of April, 2014, allowed the application and condoned the delay in filing the appeal against the judgment and

decree dated 23rd of December, 1994, passed by the Court of learned Judge Small Causes, Srinagar.

Heard the learned counsel for the parties, considered the matter and perused the record.

Mr Ishfaq Muzamil Nehvi, the learned counsel appearing on behalf of the petitioner, has, while strengthening the grounds taken in the petition,

made reference to the application of the applicant/ appellant/ respondent No.1 herein, filed seeking condonation of delay and submitted that the

application is not only vague, but also bereft of any material which would come within the contours of ''sufficient cause'' in seeking the huge

condonation of delay, i.e. almost 17 years, in filing the appeal. The learned counsel further submits that, admittedly, the petitioner and the

respondent No.2 herein are in possession of the property before passing of the judgment and decree dated 23rd of December, 1994, and, the

applicant/ appellant/ respondent No. 1 herein had the knowledge about the same in view of the fact that the holding of the possession, as an owner

of the property, has reference to the settlement arrived at between the petitioner and his father and that the knowledge of the said settlement is with

the applicant/ appellant/ respondent No.1 herein much before the judgment and decree is passed and, continues to be so even after the judgment

and decree is passed. He further submits that the respondent No.1 herein is only adopting the tactics of approaching the Police, Court(s) of law,

etc., only to harass the petitioner as is evident from his approach adopted in not only filing the appeal, but also by filing a civil suit on the same

subject.

Mr M. Y. Bhat, the learned counsel appearing on behalf of the respondent No.1, submits that sufficient cause is supplied with reference to

providing full details of the knowledge gained by the respondent No.1 herein of the judgment and decree and the immediate steps taken thereafter.

He further reiterates the grounds taken in the application seeking condonation of delay.

Perusal of the application filed seeking condonation of delay reveals that the same mostly concentrates on the approach adopted by the

petitioner herein in obtaining the decree by a fraudulent means, but the cause reflected and detailed out in Paragraph Nos. 6 and 7 of the

application, as detailed out hereinabove, is vague. No full details are provided to the Court as to how and when the applicant/ appellant/

respondent No.1 herein got the knowledge of the judgment and decree only in the month of June 2011, when, admittedly, the petitioner is in

possession of the property since long. The learned Appellate Court also, while deciding the application, has formed his opinion in allowing the

application seeking condonation of delay in filing the appeal merely on the ground that the applicant/ appellant/ respondent No.1 herein got the

knowledge of the judgment and decree only few days before filing of the appeal. No exercise is undertaken with reference to seeking evidence on

the said contention raised by the applicant/ appellant/ respondent No.1 herein vis-a-vis having the knowledge of the judgment and decree just

before few days of filing the appeal.

I am of the considered opinion that the Court below has decided the application in hot-haste, without seeking any evidence with reference to the

contention of the applicant/ appellant/ respondent No.1 vis-a-vis the knowledge of the applicant/ appellant/ respondent No.1 herein about the

judgment and decree and the source of such knowledge with supportive evidence and material. Merely supplying the cause of having the

knowledge before few days of filing the appeal is not sufficient cause for condoning the huge delay of almost 17 years, instead the Court had the

bounden duty to record satisfaction with regard to such sufficient cause shown. Needless to mention that the learned Appellate Court has only

noticed two paragraphs of the application, as detailed out hereinabove, and formed the opinion that the applicant/ appellant/ respondent No.1

herein has shown sufficient cause for condonation of delay in filing the appeal, which, in my opinion, is not enough and, as per well settled principles

of law, the onus of showing the sufficient cause is on the applicant/ appellant/ respondent No.1 herein.

On the subject of Courts arriving at satisfaction with reference to ''sufficient cause'', the law is no more res integra. ''Sufficient cause'' has been

explained and interpreted not only by the legal verbatim of dictionary meaning, but also by the judgments of the various Courts, including the

Supreme Court of India. Reference, in this connection, is made to the decision of the Apex Court rendered in the case of ""Balwant Singh v.

Jagdish Singh & Ors."", reported as ""AIR 2010 Supreme Court 3043"", paragraph Nos. 13 and 15 being relevant, as such, are reproduced

hereunder verbatim et literatim:

As held by this Court in the case of Mithailal Dalsangar Singh (AIR 2003 SC 4244 :2003 AIR SCW 4878) (supra), the

abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the

other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally.

We may state that even if the term ''sufficient cause'' has to receive liberal construction, it must squarely fall within the concept of

reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce

the concept of ''reasonableness'' as it is understood in its general connotation. The law of limitation is a substantive law and has

definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately

depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the

failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away

that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that

party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly

negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued

to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not

correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the

explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any

of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the

application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent

person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal

construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh

[(2000) 9 SCC 94]: (AIR 2000 SC 2306 : 2000 AIR SCW 2389), this Court had taken a liberal approach for condoning the delay

in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of

seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be

condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court

while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court took the

view: ""7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the

expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the

decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has

obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the

decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if

sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion

has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance

substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however,

necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question

as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in

the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be

dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone

the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the

party or its bona fides may fall for consideration;...

We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (AIR 2009

SC (Supp) 886 : 2008 AIR SCW 6025) (supra). In this case, the Court, after discussing a number of judgments of this Court as well

as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the

provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the

application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:-

13 (i) The words ""sufficient cause for not making the application within the period of limitation"" should be understood

and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the

case, and the type of case. The words ''sufficient cause'' in Section 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona

fides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for

setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the

legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure

of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The

courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of

abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and

circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently

than delays in the institution of an appeal. The courts view applications relating to lawyer''s lapses more leniently than

applications relating to litigant''s lapses. The classic example is the difference in approach of courts to applications for

condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification

of defects.

(v) Want of ""diligence"" or ""inaction"" can be attributed to an appellant only when something required to be done by him,

is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is

admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected

to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting

respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.

We may also notice here that this judgment had been followed with approval by an equi-bench of this Court in the case of Katari

Suryanarayana (AIR 2009 SC 2907 : 2009 AIR SCW 4640) (supra).

In the above factual background, coupled with the law as laid down by the Apex Court and discussed hereinabove, this revision petition is

allowed and the order dated 23rd of April, 2014, passed by the Court of learned 1st Additional Sessions, Judge, Srinagar, on the application filed

by the applicant/ appellant/ respondent No.1 herein, seeking condonation of delay, is set aside. However, the Court below is directed to consider

the application filed for condonation of delay afresh, after seeking supplementary grounds with supportive evidence/ material and decide the same

on merits.

Registry to send down the trial Court records alongwith a copy of this order.

Parties shall appear before the learned Appellate Court on 19th of December, 2017.

Revision petition alongwith connected MP(s) disposed of as above.