Jammu & Kashmir High Court - Srinagar BenchMst. Rafiqa Begum vs Stte Of J&K; & Ors on 8 August, 2017HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR

 Case No: COD 289/2014 in LPA 185/2014                      Dated : 08th of Aug. 2017
 MST. RAFIQA BEGUM                       VERSUS               STTE OF J&K & ORS
                         ORDER SHEET
 CORAM:
 HON'BLE           MR. JUSTICE RAMALINGAM SUDHAKAR- JUDGE
 HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
 i.      Whether to be approved for
         reporting in NET :                       Yes/No.
 ii.     Whether to be approved for
         reporting in Digest/Journal :            Yes/No

 FOR THE APPLICANT/s :                   MS. ARIFA JAN
 FOR THE RESPONDENT/s:                   MR. M.A.RATHORE, AAG & S.H.THAKUR
 (PER HANJURA-J)




01/     The applicant - Mst. Rafiqa Bano has filed an application
seeking the indulgence of this Court in condoning the delay of
01 year & 146 days in filing the Appeal on the grounds, inter alia,
that the applicant -appellant came to know about the judgement dated
02nd of May, 2013 of this Court,                passed in SWP 1026/2008, only
when she filed the second writ petition (OWP 605/2013). The
applicant-appellant proceeds to state that that she was unaware of the
legal procedure and technicalities, which resulted in delay to file the
appeal against the order aforementioned. It is further pleaded in the
application by the applicant that no sooner did she get the opinion
from her lawyer, she decided to file the appeal. However, the
applicant further states that because of the                ailing health of her
daughter, she was not able to file the appeal in time. It is also pleaded
in the application that the delay in filing the appeal was neither
deliberate nor willful and if the delay is not condoned, the applicant
 will suffer an irreparable loss. The application is buttressed with an
affidavit.
02/     Learned counsel for the         respondents      have vehemently
resisted the application of the Appellant, primarily on the ground that
although the applicant has stated that she sought the opinion of the
counsel for filing the appeal, yet there is nothing to state as to when
the applicant was advised to file the Appeal. The application being
cryptic and there being no ground, much less a sufficient one, for the
Condonation of Delay, the application is liable to be dismissed.
03/     Heard and considered.
04/     It cannot be disputed that the Law of Limitation has to be
applied with all its vigor and rigor as prescribed by the Statute. One
cannot escape the consequences of section 5 of the J&K Limitation
Act Samvat 1995, which provides that for the extension of the period
of limitation in a given case, the condition precedent is that the
applicant or the appellant has to satisfy the Court that he/she has
carved out a sufficient cause in seeking the indulgence of the Court
for not preferring the Appeal or Application within the stipulated
time.        The applicant - appellant cannot escape the liability of
satisfying the Court that the Appeal was filed with due diligence. The
Courts cannot come to the aid and rescue of the applicant/s where the
application for condonation of delay does not spell out sufficient
cause and the approach of the applicant, in making such application, is
casual and cryptic.
05/     Testing the application of the Applicant on the touch stone of
the law, governing the subject, it will be profitable to quote
paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC),
herein below, in verbatim :
        "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR
        1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:
        "Law of limitation may harshly affect a particular party
       but it has to be applied with all its rigor when the statute
       so prescribe and the Courts have no power to extend the
       period of limitation on equitable grounds. The discretion
       exercised by the High Court was, thus, neither proper nor
       judicious. The order condoning the delay cannot be
       sustained. This appeal, therefore, succeeds and the
       impugned order is set aside. Consequently, the
       application for condonation of delay filed in the High
       Court would stand rejected and the Miscellaneous First
       Appeal shall stand dismissed as barred by time. No
       costs."
8.     In another case, the Hon'ble Supreme Court, while deliberating
upon the question of condonation of an inordinate delay of 264 days on
an application preferred by the Government, has observed as under:
       "2. This special leave petition filed on November 16,
       1993 is delayed by 264 days. For quite some time in the
       past this Court has been making observations as to the
       grave prejudice caused to public interest by appeals
       brought on behalf of the Government being lost on the
       point of limitation. Such observations have been made for
       over a few years in the past. But there seems to be no
       conspicuous improvement as is apparent in the present
       petition which is filed in November 1993. The explanation
       for the delay, had better bet set out in petitioner's own
       words:
       ....................................................................................3. This explanation is incapable of furnishing a judicially
       acceptable ground for condonation of delay. After the
       earlier observations of this Court made in several cases
       in the past, we hoped that the matters might improve.
       There seems to be no visible support of this optimism.
       There is a point beyond which even the courts cannot help
       a litigant even if the litigant is Government which is itself
       under the shackles of bureaucratic indifference. Having
       regard to the law of limitation which binds everybody, we
       cannot find any way of granting relief. It is true that
       Government should not be treated as any other private
       litigant, as indeed, in the case of the former the decisions
       to present and prosecute appeals are not individual but
       are institutional decisions necessarily bogged down by
       the proverbial red-tape. But there are limits to this also.
       Even with all this latitude, the explanation offered for the
       delay in this case merely serves to aggravate the attitude
               of indifference of the Revenue in protecting its common
              Interests. The affidavit is again one of the stereotyped
              affidavits making it susceptible to the criticism that the
              Revenue does not seem to attach any importance to the
              need for promptitude even where it affects its own
              interest."06/    Applying the ratio of the law laid down above to the instant
case, there has been a reckless delay of 01 year and 146 days in filing
the LPA and no satisfactory explanation has come forward on that
count. No doubt, a liberal approach has to be adopted in the matter of
condonation of delay when there is no gross negligence or deliberate
inaction or lack of bona fides on the part of the applicant but in the
instant case the applicant - appellant took his own time to formulate
an opinion that the Appeal has to be filed. The law laid down in AIR
2011 SC 1237 enunciates this principle and it lays down as follows :"........3/ This appeal emanates from the judgement of the
              Division Bench of the Guwahati High Court (High Court of
              Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and
              Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No.
              72020 of 2006. The appeal filed by the Union of India was
              dismissed by the High Court because of inordinate delay of 239
              days. The Division Bench of the High Court, while dismissing the
              appeal, has observed as under :"We have gone through the contents of the
                     petition. The delay occurred because of the respondents
                     took their own sweet time to reach the conclusion whether
                     the judgement should be appealed or not. It is not that
                     they were prevented by any reason which is beyond their
                     control to take such a decision in time. Even otherwise, on
                     merits of the case also it does not appear to have any
                     tenable ground of appeal. In the circumstances, we do
                     not see any merits in this petition."4/    We have also gone through the condonation of delay
             application which was filed in the High Court. In our considered
             view, the High Court was fully justified in dismissing the appeal
             on the ground of delay because no sufficient cause was shown for
             condoning the delay.....................6/ The Union of India ought to have been careful particularly in
              filing this Civil Appeal because the Division Bench, by the
              impugned order, has dismissed the appeal before it on the ground
              of delay. It is a matter of deep anguish and distress that majority
              of the matters filed by the Union of India are hopelessly barred
              by limitation and no satisfactory explanations exist for condoning
              inordinate delay in filing those cases."07/    Resort can also be had to an elaborate and a lucid judgement
of Hon'ble the Supreme Court, reported in           (2013) 12 SCC 649, the
relevant excerpts of which are as under :"...........21.2. (ii) The terms "sufficient cause" should be understood in
       their proper spirit, philosophy and purpose regard being had to the fact
       that these terms are basically elastic and are to be applied in proper
       perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and attitude of a party relating
              to its inaction or negligence are relevant factors to be taken into
              consideration. It is so as the fundamental principle is that the
              courts are required to weigh the scale of balance of justice in
              respect of both parties and the said principle cannot be given a
              total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds
              urged in the application are fanciful, the courts should be
              vigilant not to expose the other side unnecessarily to face such a
              litigation...................21.12. (xii) The entire gamut of facts are to be carefully
              scrutinized and the approach should be based on the paradigm of
              judicial discretion which is founded on objective reasoning and
              not on individual perception.21.13. (xiii) The State or a public body or an entity representing
              a collective cause should be given some acceptable latitude.
              22.1 (a) An application for condonation of delay should be
              drafted with careful concern and not in a haphazard manner
              harboring the notion that the courts are required to condone
              delay on the bedrock of the principle that adjudication of a lis on
              merits is seminal to justice dispensation system.
              ....................31.     Neither leisure nor pleasure has any room while one
              moves an application seeking condonation of delay of almost
              seven years on the ground of lack of knowledge or failure of
              justice."08/     The applicant -appellant appears to have               drafted     the
application for condonation of delay recklessly without giving a
proper account of the dates and details of the grounds agitated in it.
Recourse has been had to the leisure and pleasure in moving the
application and to cap it all, the applicant has not knocked the doors of
the Court with clean hands. It is so because it has been pleaded in the
application for the condonation of delay that the applicant came to
know about the judgement of this Court only after filing the other
writ petition. This assertion is belied from a bare perusal of the
judgement dated 02nd of May, 2013 of this Court in which,
Mr. M.M.Dar, learned Advocate, is found to have appeared before the
Court to represent the applicant - petitioner therein. Therefore, fair
play has become a casualty at the hands of the applicant for the
simple reason that what has been pleaded, to form the bedrock and
baseline of the case, does not hold true.09/     To substantiate this contention further, a cue can be had from
the law laid down by the Division Bench of this Court in COD No.
237/2016 (LPA 06/2016), wherein it has been held as follows :"1. There is a delay of 310 days in filing the accompanying
              appeal. The COD application which is under consideration is
              vague and without any specific details explaining the day to day
              delay in filing the appeal. The only explanation that has been
              given is that after receipt of the judgement, the appellant
              examined the judgement which took, "sometime" and thereafter,
              the judgement was sent to the State Law & Parliamentary Affairs,
              Ministry for further action. It is further stated that the Law &
              Parliamentary Affairs, Ministry examined the judgement and
              after examining the same, it was decided that an LPA should be
              filed and this also took "considerable time" and ultimately
              sanction for filing of the appeal was granted by the Law
              Department.2. No reasons have been indicated as to why in the first instance
              examination of the judgement took time and why in the second
              instance, the Law Department took considerable time in deciding
              to file an appeal.3. Sufficient cause for the delay clearly has not been shown by
               the applicants/appellants. Consequently, the COD application is
               dismissed. The accompanying appeal also stands dismissed."10/      Viewed in the context of what has been said and done above,
we are of the considered opinion that the applicant has failed to
explain the delay of      01 year & 146 days in filing the Appeal.
Consequently, the application for Condonation of Delay, in filing the
Appeal, is rejected, as a consequence of which, the Letters Patent
Appeal (LPA) shall stand dismissed as barred by time.(M.K. HANJURA)       (RAMALINGAM SUDHAKAR)
                                      JUDGE                             JUDGE
Tariq MOTA
SRINAGAR.
08 -08-2017