Point of Law : Delay/Laches/Limitation - Application for Condonation of Delay rejected - Applicants/ appellants does not show any ground muchless sufficient or cogent to condone delay of 448 days.

JUDGMENT :

1. Condonation of delay in directing an Appeal against Judgment and Decree dated 21st December 2017, passed by Principal District Judge, Anantnag (for succinctness “Trial Court”) in a civil suit titled Gh. Mohammad Sheikh v. State of J&K and others, is beseeched for in application on hand.

2. Contents contained in instant application beseeching condoning of delay are that after having received copy of impugned judgment, question of filing Appeal was examined by appellants in light of record and in the process, appellants were required to collect records from various subordinate offices and also to obtain legal advice from the Department of Law, Justice and Parliamentary Affairs. It is also contended in application that examination of the matter and consideration of question of filing the Appeal at various levels led to consumption of time. The Law Department is stated to have considered the matter on its merits and decided to challenge the judgment and sanction to file Appeal was given by Law Department vide letter no. LD(Lit) 2002/276-HME dated 18th January 2019. It is averred that counsel took up the matter with appellants for providing relevant record drafting the appeal and filing it before this Court and after receiving relevant records, counsel took some days to draft and file Appeal and, therefore, delay has not been caused in filing appeal deliberately, wilfully or intentionally. According to applicants/appellants, matter covered by appeal involves very important question of law, which require authoritative adjudication of this Court.

3. Objections, in opposition to application for condonation of delay, have been filed by respondent, insisting therein that there is more than one year delay in filing the Appeal. It is insisted that reasons given by applicants in application for condoning delay do not constitute sufficient ground to condone delay and that merely sanction to file appeal was given by the Law Department on 18th January 2019, after a period of one years, would not absolve applicants from offering sufficient reasons and grounds for delay in filing the appeal.

4. I have heard learned counsel for parties and considered the matter.

5. A civil suit, as is gatherable from perusal of the file, filed by respondent before Trial Court, was decreed vide judgment 21st December 2007. An appeal as was felt to be filed by appellants, has, however, been preferred after a delay of 448 days with an independent application to condone the delay.

6. The above milieu takes this Court to the Code of Civil Procedure to be gone through and discussed. Pertinent procedure concerning Appeals from original Decrees is enunciated in Part VII of the Code. A right to appeal in terms of Section 96 is a substantive right and not a procedural matter. Section 96 does not refer to or enumerate a person, craving to file an appeal. In order to sustain an appeal, it is necessary to show that a party, desirous of appealing, has a right of appeal and that the Court, to which he would prefer the appeal, has a right to entertain it. The procedure for filing and deciding appeals is prescribed in Order XLI (Rules 1-37) of the Code of Civil Procedure.

7. Rule (1) of Order XLI says about the form of appeal and what to accompany memorandum of appeal. Rule 2 envisions about grounds to be taken in an appeal. Rule 3 provides for rejection or amendment of memorandum of appeal. Rule 3-A, apt herein, relates to application for condonation of delay. It provides:

“3-A. Applications for condonation of delay. — (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to th