Jammu & Kashmir High Court
Rajinder Singh vs Abdul Aziz on 3 January, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 174/2024 in
RP No. 109/2023
Reserved on : 08.11.2024
Pronounced on: 03.01.2025
1. Rajinder Singh, ...Appellant(s)
S/O. Late Sh. Teja Singh
2. Gandharab Singh,
S/O. Late Sh. Teja Singh
3. Tarsem Singh,
S/O. Late Sh. Pawan Dev Singh
All residents of village Sahanu Mandi,
PO Jandrah, Tehsil & District Jammu.
Through: Mr. Sidharath Yadav, Sr. Advocate with Mr. Ayjaz Lone,
Advocate
Vs.
1. Abdul Aziz ...Respondent(s)
S/O. Sh. Shukar Khan
R/O. Village, Sahanu Mandi,
PO Jandrah, Tehsil & District Jammu.
2. J&K Special Tribunal, Jammu,
Through its Registrar, JDA Complex,
Janipur, Jammu.
Through: Mr. Dhiraj Chowdhary, Advocate, for contesting respondent no. 1
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE.
JUDGMENT
Mohd Yousuf Wani -J
01. Impugned in the instant Letters Patent Appeal filed under
Clause 12 of the Letters Patent Rules [hereinafter referred to as
“LPA” for short] is the Judgment dated 9th July, 2024, passed by
the learned Single Bench of this Court while allowing an
application for condonation of delay (CM No. 6794/2023) that
came to be filed by the contesting respondent (petitioner therein),
LPA No. 174/2024
2
namely, Abdul Aziz along with the main petition (109/2023)
seeking review of the Order dated 18th May, 2017, passed by this
Court in OWP No. 878/2010, while allowing the said petition and
setting aside the Order dated 18th February, 2010 of the learned
J&K Special Tribunal, Jammu, [hereinafter referred to as the
“Tribunal” for short] impugned therein.
02. A brief resume of the facts of the case relevant for disposal of
the instant intra court appeal deserves a needful mention.
One, Sh. Teja Singh, father of the appellants 1 and 2 and
the grandfather of appellant no. 3 allegedly started cultivating a
big chunk of land approximately measuring 85 Kanals falling
under different khasra numbers and situated at village Sahano
Tehsil and District Jammu, in the year 1965, which land was
belonging to Noor Khan and Yousaf Khan sons of Uzar Khan
and Aziz Khan son of Shukar Khan (contesting respondent no.
1/Review petitioner) initially in the capacity as tenant and
thereafter as a protected tenant by paying Batai rent to them.
That although right from 1965, the said late Teja Singh
was peacefully and uninterruptedly cultivating the aforesaid land,
but in the month of Maghar 2027 BK corresponding to
November, 1970 AD, he was forcibly dispossessed by the
owners of the land.
Sh. Teja Singh then filed an application on 25th March,
1971, before the Deputy Commissioner, Jammu, in terms of
Section 56 of the Jammu and Kashmir Tenancy Act, SVT., 1980,
[hereinafter referred to as the “Tenancy Act” for short] which
LPA No. 174/2024
3
came to be transferred for disposal under law to the Assistant
Commissioner, Revenue, Jammu. Assistant Commissioner,
Revenue, Jammu, vide his Order dated 27th July, 1973, dismissed
the said petition and aggrieved of the same, Sh. Teja Singh
preferred an appeal before the learned Divisional Commissioner,
Jammu, who vide his Order dated 11th October, 1975, remitted
the matter to Assistant Commissioner, Jammu, exercising the
powers of Collector, Jammu. The Assistant Commissioner,
Revenue, Jammu, (Collector), subsequently allowed the
application of Sh. Teja Singh vide Order dated 23rd September,
1994, directing the present contesting respondent to be evicted
from the subject land.
The present Respondent no. 1 assailed the Order dated 23 rd
September, 1994, of the learned Assistant Commissioner,
Revenue, Jammu, through the medium of an appeal before the
appellate Authority i.e., Director, Land Records, J&K, Jammu,
but the same was dismissed vide Order dated 28 th August, 2004.
Thereafter, the Respondent no. 1 filed a revision petition
assailing the Order dated 28th August, 2004, before the learned
Tribunal, which allowed the same vide Order dated 18th
February, 2010.
The Order dated 18th February, 2010, of the Tribunal came
to be assailed by the present appellants through the medium of a
writ petition bearing OWP No. 878/2010 under Article 227 of
the Constitution of India read with Section 104 of the Jammu and
Kashmir Constitution (now rendered infructuous since 5th
LPA No. 174/2024
4
August, 2019 vide Presidential Order C.O. 272) in this Court,
which was allowed vide Order dated 18th May, 2017. The learned
Single Bench of this Court, vide the aforesaid Order dated 18 th
May, 2017, passed in OWP No. 878/2010, set aside the
impugned order passed by the Tribunal dated 18th February, 2010
and upheld the Orders dated 23rd September, 1994 and 28th
August, 2004 respectively passed by the Assistant
Commissioner, Revenue (Collector), Jammu and Director Land
Records, J&K, Jammu, to the effect of the eviction of contesting
respondent no. 1 Abdul Aziz from the subject land.
The contesting respondent, Abdul Aziz assailed the Order
dated 18th May, 2017, of the learned Single Bench of this Court
through the medium of an intra court appeal and the learned
Division Bench of this Court vide Order dated 24 th July, 2017
allowed the appeal and set aside the order passed by the learned
Single Bench dated 18th May, 2017. The learned Division Bench,
while passing the Order dated 24th July, 2017, in LPA (OW) No.
63/2017 observed that the writ petition filed by the appellants
under Section 104 of the J&K Constitution impugning the order
of the Special Tribunal before the learned Single Bench was not
maintainable and, accordingly, while allowing the intra court
appeal, set aside the order of the learned Single Bench.
The present appellants assailed the said order of the
learned Division Bench dated 24th July, 2017, in SLP before the
Hon’ble Supreme Court of India and the Hon’ble Apex Court,
vide Order dated 14th February, 2023, while allowing the Civil
LPA No. 174/2024
5
Appeal No. 1143 of 2023 arising out of SLP, set aside the order
of the learned Division Bench of this Court dated 24th July, 2017.
It was observed by the Hon’ble Apex Court in its Order dated
14th February, 2023, that important question appears to have
arisen as the High Court by a cryptic reasoning while holding the
LPA to be untenable has also held the writ petition to be
untenable and dismissed the same. The Hon’ble Apex Court
remitted the matter back to this Court for deciding the LPA
afresh in accordance with the observation of the Hon’ble Court.
The LPA (OW) No. 63/2017 came up for hearing before
this Court in pursuance of the directions of the Hon’ble Supreme
Court, but the present contesting respondent no. 1, Abdul Aziz
(Appellant therein) withdrew the same with liberty to avail
remedy, if any, available under rules.
The contesting respondent no. 1 subsequent to the
withdrawal of the LPA, choose to file a review petition (RP No.
109/2023) in respect of the Order dated 18 th May, 2017 passed
by the learned Single Bench of this Court in OWP No. 878/2010.
The said review petition was accompanied with an application
for condonation of delay (CM No. 6794/2023) filed in terms of
Rule 66 Clause 3 of the Jammu and Kashmir High Court Rules
1999 read with Section 5 of the Limitation Act, 1963. The
learned Single Bench of this Court vide Order impugned in this
LPA dated 9th July, 2024, allowed the said application and
condoned the delay in filing the review petition.
LPA No. 174/2024
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03. The order impugned has been assailed on the grounds that the
review petition has been filed with a delay of more than 2400
days i.e., more than 6 ½ years. That the review is being sought
of the Judgment of the learned Single Bench of this Court dated
18th May, 2017. That the contesting respondent no. 1, upon being
aggrieved of the Judgment dated 18th May, 2017 of the learned
Single Bench of this Court, preferred to file an intra court appeal
before the learned Division Bench of this Court, which came to
be decided in his favour, whereupon the appellants preferred a
Special Leave Petition before the Hon’ble Supreme Court. That
the Hon’ble Supreme Court vide Judgment dated 14th February,
2023, set aside the Judgment of the learned Division Bench of
this Court and remitted the matter back to the learned Division
Bench for being decided afresh within a period of six months.
That pursuant to the directions of the Hon’ble Supreme Court,
the LPA came to be listed before the learned Division Bench on
9th June, 2023, 25th August, 2023, 6th September, 2023, and 18th
October, 2023, but the respondent did not pursue the same and
instead sought withdrawal of the same on 6th November, 2023,
whereafter he filed the review petition on 20th October, 2023 in
respect of an Order dated 18th May, 2017. That the respondent
no. 1, who had to justify each day’s delay, even did not bother to
mention the number of the days of delay in filing the review
petition. That the contention of the respondent no. 1 to the effect
that he learnt about the Judgment dated 14th February, 2023 of
the Hon’ble Supreme Court in June, 2023, is not fair and honest,
LPA No. 174/2024
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because he had duly appointed and was being represented by a
learned counsel in the matter before the Hon’ble Supreme Court.
That the review petition ought to have been filed by the
respondent no. 1 within a period of 30 days of the Judgment of
the learned Division Bench of this Court i.e., by 24 th August,
2017. That respondent could not have been given benefit of the
provisions of Section 5 of the Limitation Act, because as per the
Article 126 of the said Act, a review petition in respect of a
judgment of a court other than the Hon’ble Supreme Court is to
be filed within a period of 30 days, as against which the review
petition in question was preferred after more than 2400 days i.e.,
more than 6 ½ years. That the Hon’ble Apex Court in a catena of
Judgments has laid down that each day’s delay has to be
explained by an applicant seeking condonation of delay. That
appellants have been forced in the litigation some 50 years back
when their predecessor, Sh. Teja Singh was trespassed and
dispossessed by the original petitioners/owners. That although
seven persons initially claimed to be the owners of the subject
land, yet after passing of the eviction order by the Collector
Agrarian Reforms, Jammu, on 23rd September, 1994 in favour of
the appellants, the remaining persons except the respondent no. 1
withdrew the contest. That the respondent no. 1 is not holding
any power of attorney on behalf of the remaining land owners
and he asserts his ownership title only in respect of 21 Kanals out
of total quantam of land measuring more than 85 Kanals. That
the respondent (review petitioner) made an unfair and illegal
LPA No. 174/2024
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effort to justify the filing of grossly and inordinately delayed
review petition by attributing the delay to the incorrect legal
advice of his learned counsel, which conduct needs to be strongly
deprecated. That the “doctrine of finality” in litigation, shall be
left meaningless in case huge and inordinate delay is condoned.
That the learned Single Bench of this Court fell in error in
observing and concluding that the cause of action to file the
review petition accrued to the respondent no. 1 only upon
passing of the Judgment dated 14th February, 2023 by the
Hon’ble Supreme Court, when in fact the review has been sought
in respect of the Judgment dated 18th May, 2017 passed in OWP
No. 878/2010. That the respondent no. 1 has utterly failed to
assign any sufficient cause for condoning the delay which was in
excess of 2400 days. That it also escaped the attention of the
learned Single Bench while passing the impugned order that an
applicant seeking condonation of delay has to justify and explain
each day’s delay. That the liberal approach adopted by the
learned Single Bench while passing the impugned order was
totally unjustified in the facts and circumstances of the case. That
the learned Single Bench has erred in observing that the period of
limitation in the case shall commence from the date when the
Hon’ble Supreme Court set aside the order passed by the learned
Division Bench. That without prejudice to the stand of the
appellants (respondents in review petition), again inordinate
delay has been occasioned in filing the review petition after
passing of the Order dated 14th February, 2023 by the Hon’ble
LPA No. 174/2024
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Supreme Court. That the learned Single Bench did not appreciate
the case law relied upon by the appellants and condoned the huge
delay unjustifiably.
04. We have heard the learned counsel for the contesting parties.
05. Mr Sidharath Yadav, learned senior Advocate, appearing for the
appellants, while reiterating the stand already taken in the memo
of appeal, very vehemently contended that the order impugned
dated 9th July, 2024, passed by the learned Single Bench of this
Court while allowing the condonation of delay application in
relation to the review petition, suffers from patent illegality and
perversity. He contended that a huge and inordinate delay of
more than 2400 days equivalent to 6 ½ years has been condoned
without any plausible cause and justification. He contended that
condoning of inordinate delay of more than six and half years by
according overdue liberal construction to the expression
“sufficient cause” occurring in the provisions of Section 5 of the
Limitation Act has caused miscarriage of justice, rendered the
provisions of Limitation Act prescribing time limit for preferring
different claims as meaningless and has also undone the legal
rights accrued to the appellants. The learned senior counsel
submitted that it is well settled by a catena of judgments of the
Hon’ble Supreme Apex Court that an applicant seeking
condonation of delay has to explain each days delay through
sufficient cause a and lackadaisical approach should not be
condoned to the prejudice of the other party.
LPA No. 174/2024
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06. The learned senior counsel, while placing reliance on the
authoritative Judgment cited as Maniben Devraj Shah Vs.
Municipal Corporation of Brihan, Mumbai (2012) 5 SCC 157,
submitted that the liberal construction of expression “sufficient
cause” does not allow to condone total lethargy or utter
negligence so as to cause prejudice to the valuable rights of the
other side and to render the provisions of the Limitation Act
meaningless. He contended that the idea underlying the concept
of limitation is that other remedy should remain alive only till the
expiry of the period fixed by the Legislature.
Again, while placing reliance on the other authoritative
Judgment of the Hon’ble Supreme Court cited as Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy and Others (2013) 12 SCC 649, the learned senior
counsel contended that a distinction needs to be drawn between a
case where the delay is inordinate and a case where the delay is
of few days. That in the former case, the consideration of
prejudice to the other side will be a relevant factor and in the
later case no such consideration arises. He contended that it has
been, inter alia, held in the case that what needs to be
emphasized is that even though a liberal and justice-oriented
approach is required to be adopted in the exercise of power under
Section 5 of the Limitation Act and other similar statutes, the
courts cannot become oblivious of the fact that the successful
litigant has acquired certain rights on the basis of the judgment
LPA No. 174/2024
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under challenge and a lot of time is consumed at various stages
of litigation apart from the cost.
The learned senior counsel again, while placing reliance on
the Judgment of the Hon’ble Madras High Court passed in case
titled P.K.Ramakrishnan Vs. The Tamil Nadu Electricity Board
1992-2 L.W., contended that the allegations of negligence on the
part of the counsel in communicating to the party being not
precise and definite, cannot be accepted and where the litigant
himself is prima facie in default, negligence of counsel cannot
come to his aid and the delay cannot be condoned.
The learned senior counsel furthr on the support of the
authoritative Judgment cited as Ajaz Bajpai Vs. Union of India
(2015) SCC Online Del. 6573, contended that a court has no
power to extend the period of limitation on equitable grounds.
That an unlimited limitation would lead to a sense of insecurity
and uncertainty, and therefore, limitation prevents disturbance or
deprivation of what may have been acquired in equity and justice
by long enjoyment or what may have been lost by party’s own
inaction, negligence or laches.
07. The learned senior counsel very vehemently contended that the
learned Single Bench, while allowing the condonation of delay
application, has erred in observing and concluding that the cause
of action accrued to the contesting respondent no. 1 to file the
review petition after the Judgment of the Hon’ble Supreme Court
dated 14th February, 2023. He further contended that although the
limitation period of 30 days for filing the review petition runs
LPA No. 174/2024
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from the date of the order of the learned Single Bench dated 18 th
May, 2017 sought to be reviewed, yet without prejudice to his
said contention, it is discernable that the contesting respondent
no. 1 has even remained in deep slumber from the passing of the
order dated 14th February, 2023 by the Hon’ble Apex Court till
filing the review petition on 20th October, 2023. He, accordingly,
prayed for setting aside of the impugned order dated 9th July,
2024 and consequent dismissal of the review petition.
08. Per contra, the learned counsel for the contesting respondent n
no. 1, Mr. Dhiraj Chowdhary, Advocate contended that the
Judgment impugned dated 9th July, 2024, of the learned Single
Bench of this Court allowing the condonation of delay in filing
his review petition in respect of the Order dated 18th May, 2017,
passed in OWP No. 878/2010 does not suffer from any illegality
or incorrectness. Learned counsel contended that the application
for condonation of delay giving rise to the impugned order was
filed by the contesting respondent no. 1 in terms of provisions of
Rule 66 (3) of the Jammu and Kashmir High Court Rules 1999,
read with Section 5 of the Limitation Act, 1963. He contended
that the contesting respondent no. 1 is an old man of 75 years of
age suffering from multiple age related ailments, who, learnt
about the Judgment dated 14th February, 2023, of the Hon’ble
Supreme Court after some months on 4th June, 2023 through
some of his relative/friend and he had no contact with any lawyer
in the Hon’ble Supreme Court and some counsel for contesting
his case was engaged by his previous counsel. Learned counsel
LPA No. 174/2024
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submitted that respondent no.1 after passing of the Judgment
dated 14th February, 2023, by the Hon’ble Supreme Court sought
legal opinion from so many Advocates and, as a result of the
same, decided to withdraw the LPA and to prefer the review
petition against the Judgment dated 18th May, 2017 of the
learned Single Bench of this Court. He contended that no delay
in filing the review petition was occasioned by the respondent
no. 1 as some time was reasonably spent by him for seeking legal
guidance and getting the review petition drafted, after the passing
of the Judgment of the Hon’ble Supreme Court. The learned
counsel submitted that after passing of the Judgment dated 18th
May,2017, by the learned Single Bench of this Court in OWP
No. 878/2010, he assailed the same before the learned Division
Bench of this Court through LPA, being aggrieved of the same
and upon disposal of the LPA by the learned Division Bench on
24th July, 2017, the present appellants preferred a Special Leave
Petition against the same before the Hon’ble Supreme Court. The
Hon’ble Supreme Court with some observations set aside the
order of the learned Division Bench and remitted the matter back
to this Court for deciding the LPA afresh in accordance with its
observations. Learned counsel further contended that the merits
of the case were not touched either by the learned Division
Bench of this Court or by the Hon’ble Supreme Court and, as
such, the contesting respondent upon seeking the legal guidance
preferred to withdraw the LPA and to file the review petition in
respect of the Judgment dated 18th May, 2017 of the learned
LPA No. 174/2024
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Single Bench of this Court for vindication of his rights as regards
the subject matter. The learned counsel submitted that, the
contesting respondent no. 1 did not commit any intentional or
deliberate delay in filing the review petition. He further
submitted that the contesting respondent no. 1 very diligently
contested the matter up to the level of the Hon’ble Apex Court
without showing any lackadaisical approach. He contended that
the Judgment of the learned Division Bench of this Court dated
24th July, 2017 went in favour of the respondent no. 1, but the
order passed by the Hon’ble Supreme Court dated 14th February,
2023, remitting the matter back to the learned Division Bench for
deciding afresh in accordance with its observations, gave the
cause of action to the respondent no. 1 to prefer a review petition
after choosing to withdrawing the LPA. The learned counsel in
support of his contentions placed reliance on the authoritative
Judgment of the Hon’ble Supreme Court cited as Collector,
Hooghly and Ors. vs. Nirmal Sarkar (D) by Lrs. And Ors 2008
(II) OLR (SC)-415 and Meerut Kendriya Thok Upbhokta Shakari
Bandar vs. Vakil Chand Jain (2017) AIR (SC) 2159. The learned
counsel, accordingly, prayed for dismissal of the LPA.
09. We have perused the record of the instant appeal, especially, the
copies of the impugned Judgment dated 9th July,2024, Judgment
dated 18th May, 2017, sought to be reviewed, Judgment dated
24th July,2017 passed in LPA (OW) No. 63/2017 and the
Judgment dated 14th February, 2023 of the Hon’ble Apex Court.
LPA No. 174/2024
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10. We have also given our thoughtful consideration to the rival
arguments advanced on both the sides.
11. The contesting respondent no. 1 appears to have filed the review
petition in terms of the provisions of the Rule 66 of the Jammu
and Kashmir High Court Rules 1999 read with the provisions of
Order XLVII of the Code of Civil procedure. Since the review
petition is reported to have been filed before this Court on 20th
October, 2024, admittedly, beyond the period of limitation,
which is 30 days from the date of passing of the Judgment/Order
sought to be reviewed, as such, the application for condonation
of delay in terms of provisions of Section 5 of the Limitation Act
came to be filed along with main review petition. It is profitable
to reproduce Section 5 of the Limitation Act for ready reference.
“Section 5, Extension of prescribed period in certain cases.
Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908), may be admitted after
the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within such
period.”
12. Assignment of a, “sufficient cause” is sine qua non for seeking
condonation of delay in filing any appeal or an application, which
for advancement of substantial justice shall receive a liberal
interpretation. According a liberal interpretation to a cause
advanced for condoning delay is indeed in the discretion of the
court which needs to be exercised with great care and caution so
that an ascertainment is made of the probable bona- fides of
applicant striving for vindication of his legal rights or otherwise
LPA No. 174/2024
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of his mala-fides arising from his gross negligence and
carelessness likely to cause prejudice and hardship to the other
party in the litigation having obtained some legal right with the
passage of time. Liberal interpretation of the “sufficient cause” to
a large extent depends on the facts and circumstances of the case.
Clause (3) of the Rule 66 of the Jammu and Kashmir High Court
Rules, 1999 also provides for condonation of delay specifically
for a review petition upon assigning of sufficient cause by the
review petitioner for not preferring the same within stipulated
period of 30 days. Article 124 of the Schedule appended to the
Limitation Act also prescribes a period of 30 days for filing a
review petition in respect of a Judgment by a court other than the
Supreme Court. It has been authoritatively held by the Hon’ble
Supreme Court in Maniben Devraj Shah Vs. Municipal
Corporation of Brihan, Mumbai (2012) 5 SCC 157, also relied
upon by learned counsel for the appellants that ” what colour the
expression ‘sufficient cause’ would get in the factual matrix of a
given case would largely depend on boa-fide nature of the
explanation. If the court finds that there has been no negligence
on the part of the applicant and the cause shown for the delay
does not lack bona-fides, then it may condone the delay. If, on the
other hand, the explanation given by the applicant is found to be
concocted or he is thoroughly negligent in prosecuting his cause,
then it would be a legitimate exercise of discretion not to condone
the delay.”
LPA No. 174/2024
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13. The observations made by the Hon’ble Supreme Court in
Collector (LA) vs. Katiji (1987) 2 SCC 107, while making a
significant departure from its earlier Judgments, at para-3 of its
Judgment deserve a needful mention.
“3, The legislature has conferred the power to
condone delay by enacting Section 5 of the
Indian Limitation Act of 1963 in order to
enable the Courts to do substantial justice to
parties by disposing of matters on ‘merits’.
The expression “sufficient cause” employed by
the legislature is adequately elastic to enable
the courts to apply the law in a meaning- full
manner which subserves the ends of justice–
that being the life-purpose for the existence of
the institution of Courts. It is common
knowledge that this Court has been making a
justifiably liberal approach in matters
instituted in this Court. But the message does
not appear to have percolated down to all the
other Courts in the hierarchy. And such a
liberal approach is adopted on principle as it
is realized that:-
i. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
ii. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is con-
doned the highest that can happen is that a
cause would be decided on merits after
hearing the parties.
iii. “Every day’s delay must be explained” does
not mean that a pedantic approach should be
made. Why not every hour’s delay, every
second’s delay? The doctrine must be applied
in a rational common sense pragmatic
manner.
iv. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim toLPA No. 174/2024
18have vested right in injustice being done
because of a non-deliberate delay.
v. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious
risk.
vi. It must be grasped that judiciary is respected
not on account of its power to legalize
injustice on technical grounds but because it
is capable of removing injustice and is
expected to do so.”
14. After passing of the Judgment in case Collector Land
Acquisition vs. Mst. Katiji (1987) 2 SCC 107, wherein some
guiding principles were formulated for consideration of an
application for condonation of delay, the Hon’ble Apex Court
subsequently in some cases including B.Madhuri Goud Vs.
B.Damodar Reddy (2012) 12 SCC 693 and Esha Battarcharjee
Vs. Managing Committee of Raghunathpur Nafar Academy &
Others (2013) 12 SCC 649, reformulated guiding principles
which shall weigh in the minds of the courts while considering
the applications for condonation of delay. The said principles are
reproduced hereunder for the sake of convenience.
(i) “There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with
an application for condonation of delay, for the
courts are not supposed to legalize injustice but are
obliged to remove injustice.
(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.
(iii) Substantial justice being paramount and pivotal
the technical considerations should not be given undue
and uncalled for emphasis.
LPA No. 174/2024
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(iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of
the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the courts are required to be vigilant
so that in the ultimate eventuate there is no real failure
of justice.
(vii) The concept of liberal approach has to encapsule
the conception of reasonableness and it cannot be
allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to the
latter it may not be attracted. That apart, the first one
warrants strict approach whereas the second calls for a
liberal delineation.
(ix) The conduct, behaviour 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.
(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.
(xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of the law of limitation.
(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.
(xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
(xiv) An application for condonation of delay should
be drafted with careful concern and not in a half
hazard manner harbouring 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.
(xv) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
(xvi) Though no precise formula can be laid down
regard being had to the concept of judicial discretion,
yet a conscious effort for achieving consistency and
collegiality of the adjudicatory system should be made
as that is the ultimate institutional motto.
(xvii) The increasing tendency to perceive delay
as a non-serious matter and, hence, lackadaisical
propensity can be exhibited in a non-chalant manner
requires to be curbed, of course, within legal
parameters.”
LPA No. 174/2024
20
15. We are of the opinion that it is the sufficiency of the cause
assigned for condoning the delay which is more material than the
length of the delay having occasioned in filing the cause.
16. The observations made by the Hon’ble Supreme Court in Mool
Chandra Vs. Union of India and Another (2024) SCC Online SC
1878 decided on August, 05, 2024, at para-20 of its Judgment
deserve a needful mention.
“20. No litigant stands to benefit in
approaching the courts belatedly. It is not
the length of delay that would be required
to be considered while examining the plea
for condonation of delay, it is the cause for
delay which has been propounded, will
have to be examined. If the cause for delay
would fall within the four corners of
“sufficient cause”, irrespective of the length
of delay same deserves to be condoned.
However, if the cause shown is insufficient,
irrespective of the period of delay, same
would not be condoned.”
17. In Basawaraj Vs. Special Land Acquisition Officer AIR 2014 SC
746, decided on 22nd August, 2013, the Hon’ble Supreme Court
has held that the discretion to condone the delay has to be
exercised judiciously based upon the facts and circumstances of
each case. The expression “sufficient cause” as occurring in
Seciton 5 of the Limitation Act cannot be liberally interpreted if
negligence, inaction or lack of bona fide is writ large. It was also
observed that even though limitation may harshly affect rights of
LPA No. 174/2024
21
the parties but it has to be applied with all its rigour as prescribed
under the statute as the courts have no choice but to apply the
law as it stands and they have no power to condone the delay on
equitable grounds. It would be beneficial to reproduce the paras
12 and 15 of the aforesaid Judgment.
“12. It is a settled legal proposition that law of
limitation may harshly affect a particular party
but it has to be applied with all its rigour when
the statute so prescribes. The Court has no
power to extend the period of limitation on
equitable grounds. “A result flowing from a
statutory provision is never an evil. A Court has
no power to ignore that provision to relieve what
it considers a distress resulting from its
operation.” The statutory provision may cause
hardship or inconvenience to a particular party
but the Court has no choice but to enforce it
giving full effect to the same. The legal maxim
“dura lex sed lex” which means “the law is hard
but it is the law”, stands attracted in such a
situation. It has consistently been held that,
“inconvenience is not” a decisive factor to be
considered while interpreting a statute.
15. The law on the issue can be summarized to
the effect that where a case has been presented
in the court beyond limitation, the applicant has
to explain the court as to what was the
“sufficient cause” which means an adequate and
enough reason which prevented him to approach
the court within limitation. In case a party is
found to be negligent, or for want of bona fide
on his part in the facts and circumstances of the
case, or found to have not acted diligently or
remained inactive, there cannot be a justified
ground to condone the delay. No court could be
justified in condoning such an inordinate delay
by imposing any condition whatsoever. The
application is to be decided only within the
parameters laid down by this court in regard to
the condonation of delay. In case there was no
sufficient cause to prevent a litigant to approach
the court on time condoning the delay without
any justification, putting any condition
whatsoever, amounts to passing an order inLPA No. 174/2024
22violation of the statutory provisions and it
tantamounts to showing utter disregard to the
legislature.”
18. The Hon’ble Apex Court in Pathapati Subba Reddy Vs. Special
Deputy Collector (LA) 2024 SCC Online SC 513 decided on
April 08, 2024, laid down some principles for consideration of an
application for condonation of delay. It would be profitable to
reproduce the para-26 of the aforesaid Judgment.
“i. Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
ii. A right or the remedy that has not been exercised or
availed of for a long time must come to an end or cease
to exist after a fixed period of time;
iii. The provisions of Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has be
construed liberally;
iv. In order to advance substantial justice, though
liberal approach, justice- oriented approach or cause of
substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act.
v. Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient
cause is established for various factors such as, where
there is inordinate delay, negligence and want of due
diligence;
vi. Merely some persons obtained relief in similar
matter; it does not mean that others are also entitled to
the same benefit if the Court is not satisfied with the
cause shown for the delay in filing the appeal;
LPA No. 174/2024
23
vii. Merits of the case are not required to be considered in
condoning the delay; and
viii. Delay condonation application has be decided on
the parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions
have been imposed, tantamounts to disregarding the
statutory provision.”
19. It is also felt appropriate to reproduce the law laid down by the
Hon’ble Supreme Court in Delhi Development Authority vs.
Tejpal and Ors. (2024) 7 Supreme Court Cases 433 at paras 25 to
28 of its Judgment.
“25. As is clear from a plain reading of Section 5 of
the Limitation Act, there are exceptions to this general
rule. The statute allows for admitting an action
provided “sufficient cause” is shown. This vests courts
with the discretion to extend the period of limitation if
the applicant can show that he had sufficient cause for
not preferring an appeal or application within the
prescribed period. Section 5 requires analysis of two
ingredients: first, an examination of whether “sufficient
cause” has been made out; and second, whether such
cause has been shown for not filing the
appeal/application “within the prescribed period”.
26. As regards the first ingredient, the Limitation Act
itself does not provide more guidance on what its
constituent elements ought to be. Instead, Section 5
leaves the task of determining appropriate reasons for
seeking condonation of delay to judicial interpretation
and exercise of discretion upon the facts and individual
circumstances of each case.
27. While there is no arithmetical formula, through
decades of judicial application, certain yardsticks for
judging the sufficiency of cause for condonation of
delay have evolved. Mere good cause is not sufficient
enough to turn back the clock and allow resuscitation
of a claim otherwise barred by delay. The court ought
to be cautious while undertaking such an exercise,
being circumspect against condoning delay which is
attributable to the applicant. Although the actual period
LPA No. 174/2024
24
of delay might be instructive, it is the explanation for
the delay which would be the decisive factor.
28. The court must also desist from throwing the baby
out with the bathwater. A justice-oriented approach
must be prioritized over technicalities, as one
motivation underlying such rules is to prevent parties
from using dilatory tactics or abusing the judicial
process. Pragmatism over pedanticism is therefore
sometimes necessary – despite it appearing liberal or
magnanimous. The expression ‘sufficient cause’ should
be given liberal construction so as to advance
substantial justice. ”
20. Admittedly, the contesting respondent (review petitioner) did not
opt to prefer the review petition immediately after passing of the
Judgment dated 18th May, 2017, of the learned Single Bench of
this Court sought to be reviewed and instead he preferred LPA
before the learned Division Bench of this Court which was
decided in his favour. Aggrieved by the Order dated 24 th July,
2017, of the learned Division Bench of this Court, the present
appellants preferred an SLP before the Hon’ble Supreme Court
which was granted and the consequent Civil Appeal No.
1143/2023 came to be allowed with the quashment and setting
aside of the order of the learned Division Bench dated 24th July,
2017. The Hon’ble Apex Court, however, remitted the matter
back to this Court for deciding the LPA afresh in accordance
with the observations of the Hon’ble Court. A party may
sometimes under a legal guidance prefer to assail the
Order/Judgment, of which, he is aggrieved, through the medium
of an appeal instead of seeking the review of the same. Without
even imagining, the touching of merits of the case, it is felt safe
LPA No. 174/2024
25to mention that the learned Single Bench of this Court through
the Order dated 18th May, 2017, sought to be reviewed only
deliberated upon technicalities to the effect that the learned
Special Tribunal could have exercised the jurisdiction in case of
involvement of a substantial question of law or of public
importance, which, (Tribunal), instead returned a finding to the
effect, that Collector Agrarian Reforms (ACR) was not
competent to pass the order dated 23rd September, 1994.
The learned Division Bench of this Court also, while
disposing of the LPA, vide Order dated 24th July, 2017,
deliberated upon a technicality and observed that power under
Section 104 of the Constitution of Jammu and Kashmir does not
extend to the orders passed by the Jammu and Kashmir Special
Tribunal. However, the Hon’ble Supreme Court, while disposing
of the Civil Appeal No. 1143/2023 was pleased to, inter alia,
observe that the issue deliberated upon by this Court in the LPA
to the effect of the maintainability of a petition under Section 104
of the erstwhile Jammu and Kashmir Constitution filed in respect
of the orders passed by the Special Tribunal, has wider
ramifications, on account of which reason, it will be appropriate
that this Court reconsiders the issue in the light of the various
Judgments cited by both the parties. The Hon’ble Supreme Court
allowed the appeal and set aside the order of this Court passed in
LPA, remitting the matter back to this Court for deciding afresh.
So we are of the view that the actual merits of the case i.e.,
determination of the respective rights of the parties in the light of
LPA No. 174/2024
26the facto legal scenario of the case were not adjudicated in the
litigation starting from the Special Tribunal Jammu. We hesitate
to mention that merit is involved in the dispute between the
parties in the light of facto-legal scenario governing the field of
dispute.
21. The perusal of the record reveals that the contesting respondent
has not slept over the matter after passing of the Judgment dated
18th May, 2017, sought to be reviewed. He vigorously pursued his
case by filing LPA and thereafter contesting SLP. It is the
contention of the respondent/review petitioner that after passing
of the order by the Hon’ble Supreme Court, he under legal
guidance decided to withdraw the LPA and to prefer a review
against the aforementioned Judgment dated 18th May, 2017 of the
learned Single Bench.
22. Thus, under these circumstances, there appears a reason to
believe that the contesting respondent/review petitioner bonafidly
conceived to prefer the review petition. He, as such, is supposed
to have a sufficient cause to prefer the review petition,
notwithstanding the length of the time.
23. We are of the view that the underlying principles evolved by the
Hon’ble Supreme Court from time to time and especially in cases
tiled Collector Land Acquisition vs. Mst. Katiji, and Esha
Bhattarcharjee Vs. Managing Committee of Raghunathpur Nafar
Academy and Ors, cited supra, for consideration of an application
seeking condonation of delay, in the facts and circumstances of
this case justify the condonation of delay.
LPA No. 174/2024
27
24. As hereinbefore mentioned, the Hon’ble Supreme Court in Mool
Chandra Vs. Union of India and Anr decided on August 05, 2024,
has, inter alia, observed “no litigants stands to benefit in
approaching the courts belatedly. It is not the length of delay that
would be required to be considered while examining the plea for
condonation of delay, but the cause propounded.
25. It is also needful to mention that, we may not be misunderstood
to observe that the expression “sufficient cause” needs an
unqualified liberal interpretation so as to render the provisons of
the Limitation Act meaningless. Rules of limitation are not meant
to destroy the rights of the parties. They are meant to see that
parties do not resort to dilatory tactics, but seek their remedy
promptly. The idea is that every legal remedy must be kept alive
for a legislatively fixed period of time. The object underlying law
of limitation is based on the maxim “interest reipublicae up sit
finis litium” meaning that it is for the general welfare that a
period be put to litigation. A long passage of time alone is not
enough to turn down the plea of an applicant and shut the door
against him. If the explanation does not smack of mala-fides or it
is not put forth as part of a dilatory strategy, the Court must show
utmost consideration to the litigant. But when there is reasonable
ground to think that the delay was occasioned by the party
deliberately to gain time, then the court should be hesitant to
accept the explanation. While condoning the delay, the Court has
not to forget the other side.
LPA No. 174/2024
28
26. In the backdrop of the aforementioned discussion, we in the facts
and circumstances of this case find no illegality or perversity with
the order impugned. The instant Letters Patent Appeal, as such, is
dismissed.
(Mohd. Yousuf Wani) (Sanjeev Kumar)
Judge Judge
JAMMU:
03.01.2025
"Shamim Dar"
Whether the Judgment is reportable? Yes/No
Shamim Ahmad Dar
I attest to the accuracy and
authenticity of this document
LPA No. 174/2024
03.01.2025