Shaista Naaz vs State of J&K & Ors.

Order dated 31st December 2007 is called in question in this revision petition. The 1st Appellate Court vide impugned order has allowed the

application for condonation of delay for filing the appeal against the decree and judgment passed by learned Sub Judge (CJM) Srinagar dated 28th

June 2005. Learned Sub Judge in a civil suit filed by the petitioner passed decree in the following terms:

Accordingly the suit of the plaintiff is decreed and the plaintiff is declared to be entitled for regularisation with respective effect and defendants are

permanently restrained not to dispense with the service of the plaintiff except in accordance with law and further a decree for mandatory injunction

is also passed in favour of the plaintiff and against the defendants commanding upon the defendants to implement the order no. 209 of 2001 dated

20.04.2001 in letter and spirit and to pay all service benefits to the plaintiff and issue formal orders of regularisation in her favour. No orders as the

costs of the suit file be consigned to records after due completion.

Being aggrieved of the said decree and judgement, an appeal came to be filed. The appeal having been filed beyond the period of limitation, an

application was filed seeking condonation of delay in filing the appeal. The application alongwith appeal it appears was transferred to the court of

Additional District Judge Srinagar. In the application condonation of delay for filing the appeal, copy whereof has been placed on the record of this

revision petition. It is inter alia pleaded that the appellant 1 and 2 were not properly served by the trial court. It is further pleaded in the application

that though the appellant no. 2 was not served by the trial court still exparte proceedings were initiated and decree passed in exparte. It is further

pleaded in the application that the appellants had not engaged or authorized any person, agent, official or advocate to cause appearance on their

behalf before the trial court. It has been further pleaded that notwithstanding this fact that appellant no. 2 had not filed any written statement, still

the trial court had taken notice of written statement ascribed to appellant no. 2. It has been further pleaded in the application that the same issue

was brought by the present petitioner before this Court in a writ petition and stand was taken by the appellants before this court that the present

petitioner is not covered by SRO 64 of 1994. It has been further pleaded that after getting knowledge of the decree and judgment appellant 3 and

4 brought the matter to the knowledge of the law department who advised to challenge the impugned decree and judgment in an appeal. It has

been further pleaded that the delay in filing the appeal was because of departmental wrangling and delay in filing the same was neither deliberate

nor intentional. Objections were filed to this application by the present petitioner controverting the pleadings made by the appellants in the

application seeking condonation of delay in filing the appeal.

Learned Appellate Court in terms of the impugned order, however, allowed the application seeking condonation of delay in filing the appeal

subject to payment of Rs. 2000/ (two thousand).

Heard learned counsel for the petitioner. Considered the matter.

Learned counsel for the petitioner seriously argued that it has become common affair with the state authorities to take pleas in appeals that they

had not authorized anyone to appear before the court, though, as a matter of fact, the standing counsel duly engaged appear on behalf of the

defendants before the trial courts and other courts to defend the state authorities. Learned counsel further submits that when such a plea is taken,

same shall not be accepted by the courts at their face value but the authorities shall be directed to lead evidence to prove such pleadings.

It is true that sometimes public servants who are impleaded as defendants/respondents in case filed against the States take the matters casually

which results in passing of judgments/decrees/orders against the State. A public servant in a case in which he is impleaded as party

defendant/respondent has no personal stakes involved and may choose either to remain absent or may take the matter lightly which resultantly

affects the public interest in most of the cases. When a matter in appeal or other proceedings is brought before the superior court, a duty is cast on

the superior court to consider for limited purpose of deciding the application for condonation of delay, even the merits of the case. The superior

courts if they find that there is prima facie merit in the appeal/revision, in order to do justice between the parties, the delay is normally condoned

and matter is directed to be heard on its merits.

In the present case, the 1st Appellate Court has referred to all aspects of the matter and after weighing the pros and cons of the matter has

allowed the application seeking condonation of delay that too subject to payment of Rs, 2000/. The impugned order, in this case, does not suffer

from any illegality or material irregularity.

Contention of the learned counsel for the petitioner is that the issues raised in the condonation of delay application would require to be proved

by leading evidence, need not be followed in this case as there is sufficient material on the file otherwise to allow the application seeking

condonation of delay application for filing the appeal.

This petition being meritless is accordingly dismissed. Record be send back.

The Appellate court when the record is received may issue short notice to the appellants in the appeal and is further requested to dispose of

the case with reasonable dispatch preferably within four months.