The Division Bench of the High Court comprised of Justice Sanjeev Kumar and Justice Rajnesh Oswal were hearing an application for restoration of Letters Patent Appeal, which was dismissed in default and the applicants were seeking condonation of delay of 640 days.
The Court while hearing the application held that the no straight jacket formula has been prescribed to come to the conclusion if the sufficient and good ground is made out or not. The courts while dealing with condonation of delay are to adopt a liberal, pragmatic, just-oriented, and non-pedantic approach. When substantial justice is pitted against technical considerations, substantial justice must prevail. While dealing with condonation of delay, State or public body or even an entity representing a collective cause should be given some acceptable latitude.
While hearing of the case, the applicants had contended that the LPA filed by the State was pursued diligently for four years, which came to be dismissed for non-prosecution due to the absence of State Counsel. He further contended that he had no knowledge that the appeal had been dismissed for non-prosecution nor the order of dismissal was conveyed to the applicants-appellant either by respondents or by the Office of Advocate General.
The applicants further contended that due to certain developments, like the law and order situation in the Valley during the year 2016 had worsened as a result thereof, even tempo of life was completely disrupted and the courts were no exception.
The Bench observed that that the explanation tendered by the appellants is sufficient to condone the delay. The Court said that We are aware that 640 days delay is a huge delay but given the fact that the Valley was engulfed in turbulence with the death of one Burhan Wani on 8th July 2016 and because of that the normal life remained out of gears for long and the functioning in the courts including the High Court too, was disrupted. It is because of this reason and also in view of the peculiar style in which the Government Works, there was nobody to bring it to the notice of the appellants that the appeal had been dismissed by this court for non-prosecution on 27th June 2016.
The Court also referred to the judgment of the Supreme Court in a case titled Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors, (2013) 12 SCC 649 in which the Apex Court in Para 21 and 22 held as under;
“21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (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 legalise injustice but are obliged to remove injustice.
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.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (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.
21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (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.
21.9. (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.
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.
21.11.(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 law of limitation. 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.
To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: –
22.1. (a) 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.
22.2. (b) 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.
22.3. (c) 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.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”
The Court concluded that the Courts while dealing with condonation of delay are to adopt a liberal, pragmatic, just oriented, and non-pedantic approach. When substantial justice is pitted against technical considerations, substantial justice must prevail. While dealing with condonation of delay, State or public body or even an entity representing a collective cause should be given some acceptable latitude.
The Bench while allowing the application imposed a costs of Rs. 5000/- to be deposited by the applicant in the Advocate’s Welfare Fund within a period of four weeks.
STATE OF J&K AND OTHERS Vs. ABDUL SATTAR LONE
LPASW No. 21 of 2018, Decided on 18-12-2020