Sr. No.32 Regular List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM No.6432/2022 in RFA No.49/2022 CM No.6433/2022 UT OF J&K & ANR. ... APPLICANT/APPELLANT(S) Through: - Mr. Faheem Nisar Shah, GA. Vs. MUKHTAR-UL-AZIZ …RESPONDENT(S) Through: - Mr. M. Y. Bhat, Sr. Advocate, with Ms. Urba, Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER(ORAL) 09.07.2025 1) This is an application filed by the applicants/appellants seeking condonation of delay in filing appeal against the judgment and decree dated 11.08.1998 passed by the learned 4th Additional District Judge, Srinagar [hereinafter for short “the trial court”]. 2) It appears that respondent No.1/plaintiff (hereinafter referred to as “the plaintiff”) had filed a suit against the appellants seeking recovery of an amount of R.1,20,765/ on account of his counsel fee. The said suit came to be decreed in favour of the plaintiff by virtue of judgment and decree dated 11.08.1998. The present appeal has been filed by the appellants/defendants (hereinafter referred to as “the defendants”) on 04.11.2022. Thus, there is delay of 23 years 11 months and 26 days in filing the appeal. 2 3) The explanation for the delay caused in filing the appeal, as projected in the application, is that after passing of the exparte judgment and decree, an application for setting aside the same came to be filed by the defendants but the same was rejected by the trial court vide its order dated 23.08.1999. Against the said order, the defendants filed an appeal before this Court which was registered as CIA No.115/1999. Besides this, a civil revision petition was also filed by the defendants against the same order before this Court which was diarized as CR No.155/1999. The aforesaid appeal as well as the revision petition were clubbed together. It has been further submitted that another revision petition bearing CR No.69/2007 came to be filed by the defendants challenging order dated 24.03.2004 passed by the Executing Court. The said revision petition was also clubbed with aforesaid appeal and revision petition. Both CR No.155/1999 and CIA No.115/1999 were dismissed in terms of order dated 09.06.2014. In terms of the same order, CR No.69/2007 was directed to be de-linked and listed separately. It has been further submitted that CR No.69/2007 was ultimately dismissed for non- prosecution on 27.04.2022,whereafter the defendants received notice dated 30.05.2022 from the Executing Court. 4) It has been further submitted that when the defendants appeared before the Executing Court, an opportunity was granted to them for satisfying the decree. Thereafter a meeting was held on 08.09.2022 under the Chairmanship of Secretary to the Government, Department of Law, Justice and Parliamentary Affairs wherein threadbare discussion relating to the matter was held. It was decided that exparte judgment and decree 3 dated 11.08.1998 is required to be challenged by way of an appeal as the High Court, while deciding CIA No.115/1999 had granted liberty to defendants to work out other remedies and, accordingly, the present appeal was filed. 5) The application has been contested by the plaintiff by filing a reply thereto, in which he has refuted the contentions raised by the defendants. 6) I have heard learned counsel for the parties and perused record of the case. 7) Admittedly, the appeal against the impugned judgment and decree has been filed by the defendants beyond the prescribed period of limitation and there is a huge delay of 23 years 11 months and 26 days in filing the appeal. Section 5 of the Limitation Act vests power with a court to condone the delay in filing an appeal if the appellant is able to demonstrate that due to sufficient cause he was prevented from filing the appeal within the prescribed period of limitation. The expression “sufficient cause” has to receive a liberal construction so as to advance substantial justice. Generally, delay in preferring an appeal is required to be condoned in the interests of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. If the appeal has been filed by the Government, the Courts generally tend to take a more liberal view while considering the prayer for condonation of delay. This latitude is permissible in the case of Government institutions on account of impersonal nature of functioning of such institutions. However, the question that arises for 4 consideration is as to whether in the facts and circumstances of the case, a huge delay of more than 23 years can be condoned. 8) If we have a look at the admitted facts, at least it can be said that the defendants came to know about the judgment and decree dated 11.08.1998 when they filed application for setting aside of the said judgment and decree before the trial court in the year 1999. They were also in knowledge of the said judgment and decree when they filed appeal and revision against the dismissal of their application for setting aside of the said exparte decree before this Court in the year 1999. One can understand that the defendants were prosecuting the remedy of revision and appeal against the order of dismissal of application for setting aside exparte decree before this Court upto 09.06.2014, when both revision petition as well as the appeal filed by them came to be dismissed by this Court, leaving it open to the defendants to challenge the exparte judgment and decree by way of appropriate proceedings. Even thereafter, the defendants did not challenge the exparte judgment and decree passed by the trial court by way of an appeal until the year 2022 which is after nine years of obtaining the permission to challenge the exparte judgment and decree from this Court in earlier round of litigation. The only explanation tendered by the appellants for this delay is that CR No.69/2007 against the order passed by the Executing Court was pending before this Court and it was dismissed in the year 2022 whereafter the appellants initiated the process of filing the appeal. 9) The appellant-State is having all the means to hire some of the best legal brains including the Secretary to the Government Law Department 5 who could have advised them that challenging an order attachment passed by the Executing Court would not lead to nullifying the judgment and decree passed by the trial court. Therefore, harping on the plea that the revision petition against the order of Executing Court was pending until the year 2022 and only the appellants though it necessary to file the appeal is nothing but a frivolous attempt to explain the delay in filing the appeal. 10) The manner in which the defendants/appellants have approached this case right from the date of entering appearance before the trial court where they were set exparte, upto the date of filing of the instant appeal has been grossly negligent which cannot be condoned. Merely because the appellants happen to be the State and its functionaries, this Court cannot gloss over the fact that the appellants have been lethargic and negligent in prosecuting the case right from its inception. 11) The Supreme Court in the case of Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & anr. (2012) 3 SCC 563, has observed that it is 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 Court further observed that the government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. It was also held that condonation of delay is an exception and should not be used as an 6 anticipated benefit for government departments because the law shelters everyone under the same light and should not be swirled for the benefit of a few. 12) In view of the aforesaid ratio laid down by the Supreme Court, it is clear that though some amount of latitude is permissible in law while considering a prayer for condonation of delay on behalf of the Government or its instrumentalities, yet in a case where there is lack of bonafides and lack of diligence on the part of the Government and its functionaries, the court would not come to their rescue. The present case, as already stated, is a classic example of lethargy and inaction on the part of the appellants and, therefore, their prayer for condonation of delay of more than 23 years in filing the appeal does not deserve to be accepted. 13) For the foregoing reasons, I do not find any merit in this application. The same is dismissed accordingly. As a necessary corollary, the appeal is also dismissed along with connected CM(s) 14) A copy of this order be sent to the Executing Court. (SANJAY DHAR) JUDGE Jammu 09.07.2025 “Bhat Altaf-Secy” Whether the order is reportable: YES/NO