Page 1 FAO no.32/2024 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR …… FAO no.32/2024 Pronounced on: 21.08.2025 Union Territory of J&K and another ……...Appellant(s) Through: Mr Waseem Gul, GA Versus Inhabitants of Braripora, Handwara .…...…Respondent(s) Through: Mr I. Sofi, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT CM no.6474/2024 1. There is delay of 18 days as is reported by Registry in filing appeal against Order dated 1st July 2024. Delay is condoned. CM disposed of. 2. Appeal is taken on board for final consideration. FAO no.32/2024 3. This appeal, preferred under and in terms of Order XLIII Rule 1(d) of the Code of Civil Procedure (CPC), is directed against Order dated 1st July 2024 passed by the court of Additional District Judge, Handwara (Trial Court) in a case titled as Collector Land Acquisition and another v. Inhabitants of Braripora. 4. Heard and considered. 5. The case set up by appellants is that land measuring about 72 Kanals 17 Marlas situate at Braripora Tehsil Handwara was acquired for construction Page 2 FAO no.32/2024 of Sports Stadium. Landowners resisted fixation of rate of the land, so Additional Deputy Commissioner, Handwara, vide letter no.ADC/LA/14/ 443 dated 18th October 2014 made reference under Section 18 of J&K Land Acquisition Act to Principal District & Sessions Judge, Kupwara. 6. From perusal of ex parte judgement dated 16th December 2019, it becomes evident that on 28th November 2015, Reference had been transferred to the court of Additional District Judge, Handwara (Reference Court). Initially appellants caused their appearance, but when they remained unrepresented, Reference Court vide order dated 26th April 2016 set the Collector, Land Acquisition, Handwara, ex parte and thereafter vide Order dated 21st September 2019 ex parte proceedings were initiated against District Youth Services and Sports Officer, Kupwara. After that evidence was adduced by respondents/landowners. Reference Court passed ex parte judgement on 16th December 2019. For setting aside ex parte judgement, an application under Order IX rule 13 CPC was filed by appellants, which by impugned judgement/order came to be dismissed. Hence this appeal. 7. Learned counsel for appellants, while reiterating submissions and grounds made/taken in the appeal, has stated that Reference Court erred in dismissing appellants’ application inasmuch as reasons for delay, including impact of COVID-19 and administrative challenges faced by appellants were not adequately considered. Discretion for condoning delay should be exercised to advance substantial justice and liberal approach in this regard should be adopted. It is being stated that Reference Court has failed to appreciate the fact that judgement was delivered during period of widespread curfew and pandemic and that Supreme Court extended limitation period for legal proceedings due to pandemic and that appellants were significantly affected Page 3 FAO no.32/2024 by these extraordinary circumstances. The Reference Court ought to have adopted a more liberal approach. According to appellants, there had also been turmoil in the year 2016 and post Article 370 abrogation restrictions impeded appellants ability to follow the case. Thus, delay on their part was neither deliberate nor intentional. It is vehemently stated by appellants that impugned order is bad because it was specifically pleaded before Reference Court that judgement was passed against them in the year 2019 by way of ex parte decree dated 16th December 2019 when the whole State was under curfew after abrogation of Article 370 and further due to COVID-19, the Supreme Court directed extension of time in filing appeals beyond time on account of pandemic which engulfed the entire country. 8. There is no dispute that Reference was made in the year 2014. But for next two years appellants remained uninterested to pursue and defend uninterruptedly and continuously their stand/case before Reference Court, which resulted in initiation of ex parte proceedings by Reference Court followed by a judgement as well. Lackadaisical approach on the part of appellants cannot be ascribed to others. Appellants have men and machinery provided by the Government to follow and pursue the cases before the courts of law. 9. When appellants came out of deep slumber, they on 10th July 2023 made an application before the Reference Court for setting-aside ex parte judgement dated 16th December 2018. In paragraph 06 of application, it is maintained and claimed by appellants that they had engaged a counsel to appear before Reference Court whereas contrary to this, in paragraph 08 they state that since land in question was transferred from J&K Sports Council to the Department of Science & Technology for establishment of Biotechnology Park, as such, Page 4 FAO no.32/2024 they were under impression that they were exonerated from the case as the liability was shifted towards Science and Technology Department. At the same time, appellant mention in their application that land was acquired by J&K Sports Council and compensation was transferred by them through District Youth Services and Sports and as such appellant no.2 was never under liability to pay compensation amount. Again, it is being stated in the application that due to turmoil in Valley particularly during 2016 followed by post abrogation of Article 370 in 2019 and COVID-19, they could not pursue the case. Such contentions of appellants are misconceived and have rightly been rejected by the Reference Court. It is interesting, as has also been pointed out by Reference Court, that one of the appellants had caused his appearance before Reference Court on 10th July 2023, which reflects that they were in know of execution petition. The Reference Court has also rightly said abrogation of Article 370 took place on 5th August 2019 whereas judgement was passed on 16th December 2019 and in the month of December 2019, there was no law-and-order problem. As regards COVID-19, it has also been correctly said by the Reference Court that COVID-19 restrictions were imposed in third week of March 2020 and, therefore, appellants had enough time from December 2019 to March 2020 to approach it with application for setting-aside ex parte judgement. It is also disclosed in impugned order that when salary heads of appellants were attached for non-execution of decree, appellants approached Reference Court with a motion seeking time to satisfy the decree and that said request was accepted by Reference Court. But despite that, judgement was not implemented. Thus, it is evident from perusal of impugned order that Reference Court has taken care of all averments made Page 5 FAO no.32/2024 by appellants in their application before it. In such circumstances, impugned order does not call for any interference. 10. The Supreme Court in Miscellaneous Application no.21 of 2022 in Suo Motu Writ Petition (C) no.3 of 2020 titled In Re: Cognizance for Extension of Limitation, vide order dated 10th January 2022, excluded the period from 15th March 2020 till 28th February 2022 for purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings and consequently balance period of limitation remaining as on 3rd October 2021, if any, had become available with effect from 1st March 2022. It was also directed by the Supreme Court that in cases where limitation would have expired during the period between 15th March 2020 till 28th February 2022, notwithstanding actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 1st March 2022, and in the event actual period of limitation remaining with effect from 1st March 2022 is greater than 90 days, that longer period shall apply. The Supreme Court also clarified that the period from 15th March 2020 till 28th February 2022 shall stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of Negotiable Instruments Act, and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits, within which the court or tribunal can condone delay, and termination of proceedings. 11. In view of above, it has rightly been stated by Mr. I. Sofi, learned counsel for respondents, that even if the period from the date of issuance of ex parte judgement passed by the Reference Court on 16th December 2019, is Page 6 FAO no.32/2024 excluded by more than two years, i.e., up to 28th February 2022, yet appellants remained in deep slumber in drafting, preparing and filing an application under Order IX Rule 13 CPC for seeking setting-aside of ex parte judgement passed in Reference way back in the year 2019 and that such an approach is not condonable. 12. Could it be a sufficient ground for appellants to contend that due to turmoil in 2016, post Article 370 abrogation restrictions in August 2019 as also COVID-19 restrictions imposed in third week of March 2020, the appellants’ department/organization remained at grinding halt. Such a contention is a bizarre one. Appellants cannot be heard saying that they were not having men and machinery to draft, prepare and file an application under Order IX Rule 13 CPC with respect to a judgement that was passed way back in the year 2019 in a Reference, even after March 2022 and that they had no knowledge about passing of ex parte judgement and pendency of execution petition, which, as already pointed out, had been in their knowledge when they made a motion before Reference Court during pendency of execution petition for seeking further time to implement ex parte judgement. 13. That in this era of instantaneous communication, the Organisations/ Departments should act diligently in pursuing their rights in an appeal or a review, the Supreme Court has so held in Postmaster General and others v. Living Media India Limited and another, (2012) 3 SCC 563. The Supreme Court has also said that an organization/department cannot claim that they have a separate period of limitation and that why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before the Court. The Supreme Court also went to say that: Page 7 FAO no.32/2024 “12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 14. The Supreme Court in SLP (Civil) Diary No(s).19846/2020 titled as Union of India v. Central Tibetan Schools Admin and others., decided on 04.02.2021, reported in (2021) 11 SCC 557, while dismissing it on account of delay observed as under: “We have repeatedly been counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake! The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in Page 8 FAO no.32/2024 adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP[C] Diary No. 22605/2020 decided on 11.01.2021] ………….”. 15. In the present case, firstly, there is a delay of 1301 days, in preferring application under Order IX Rule 13 CPC; secondly even if the period from the date of ex parte judgement dated 16th December 2019 till 28th March 2022 is excluded, yet there is a delay of 495 days’ delay in approaching the Reference Court with said application. It is true that a good case should not become the casualty because of the callous approach of the officials of the concerned departments/organisations, but they have to make out a case which would warrant condonation of delay. It is in such cases where meritorious case would become the casualty because of the delay, the courts would take a lenient view, but here a right has accrued to respondents in whose favour a judgement has been given by the Reference Court way back in the year 2019. Appellants, in order to seek condonation of delay, have to satisfy the Court that there is merit in the application and the Reference Court, while passing the ex parte judgement in reference and/or in their application underorder IX Rule 13 CPC, has not taken into account material facts/ evidence brought before it by appellants, thereby causing miscarriage of justice. Since in the instant case while evaluating the ex parte judgement and impugned order and also after going through the conclusions drawn by the Reference Court, I do not find that this is a fit case in which one can say that there is merit in the appeal. 16. I have thoroughly gone through the record of the Reference Court. I have evaluated the evidence produced before the Reference Court and in view of Page 9 FAO no.32/2024 the evaluation of evidence and proper appreciation, it cannot be said that it is a fit case in which delay was to be condoned. Therefore, appellants have failed to satisfy this Court about the delay that has been caused by them in approaching the Reference Court for seeking setting-aside of ex parte judgement. 17. Law as regards condonation of delay is settled. In Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448, it has been held by the Supreme Court that: “29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.” 18. The Supreme Court in Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52, has held: “Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of ‘sufficient cause’ delay shall not be condoned.” Page 10 FAO no.32/2024 19. Again, in Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565, the Supreme Court has observed that: “The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case.” 20. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows: “15. From the aforesaid authorities the principles that can broadly be culled out are: 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. 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. 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 law of limitation. Page 11 FAO no.32/2024 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. 16. To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are: 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. 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. 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. 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.” 21. Tendency of the State to file appeal, revision or SLP with huge delay without reasonable explanation has been deprecated by the Supreme Court in the case of Union of India v. Vishnu Aroma Pouching (P.) Ltd., (2022) 9 SCC 263. Relevant paragraph of the judgment is worthwhile to be reproduced as under: “3. The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh &Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No.22605/2020 decided on 11.01.2021]. The leeway which was given to the Government / public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown. This position is no more prevalent and the current legal position has been elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors v. Living Media India Ltd. & Anr. - (2012) 3 SCC 563. Despite this, there seems to be a little change in the approach of the Government and public authorities.” Page 12 FAO no.32/2024 22. A Special Leave Petition (Civil) Diary Nos. 2574/2020 titled as State of Uttar Pradesh and others v. Sabha Narain and others, reported in (2022) 9 SCC 266, was filed with delay of 502 days with an explanation given in the application for condonation of delay. The Supreme Court has said that it gives only a saga of moving of file from one place to the other and that too with long interludes. The Supreme Court also said that in fact, other than lethargy and incompetence of petitioner, there was nothing plausible which had been put on record and that the Supreme Court repeatedly discouraged the State Governments and public authorities in adopting an approach that they could walk to the Court as and when they please ignoring the period of limitation prescribed by the Statutes as if the Limitation Statute did not apply to them. Looking to the period of delay and casual manner in which the application had been worded, the Supreme Court imposed costs on the petitioner for wastage of judicial time. 23. Having regard to what has been stated above and having regard to the law laid down by the Supreme Court, the reasons given in the appeal cannot be said to be having substance to warrant interference in the order impugned and resultantly the appeal is dismissed. 24. Interim direction, if any, shall stand vacated. (Vinod Chatterji Koul) Judge Srinagar 21.08.2025 Ajaz Ahmad, Secretary Whether approved for reporting? Yes/No.