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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
VINOD CHATTERJI KOUL, J.
Bashir Ahmad Bhat & Anr.
Versus
Gh. Hassan Bhat
CM(M) No. 104/2020
Decided on : 15-09-2022
Fact of the Case:
The petitioners filed a suit for permanent injunction and an application for ad interim relief, which was granted by the Trial Court. The respondent appealed against this order after a significant delay, which the Appellate Court admitted without condoning the delay, leading to the petitioners challenging this decision.
Finding of the Court:
The court found that the Appellate Court had erred in entertaining the appeal without first addressing the delay in filing it. The court emphasized that the law requires an application for condonation of delay to be filed alongside the appeal, and the Appellate Court failed to recognize this procedural requirement.
Issues: Whether the Appellate Court had the jurisdiction to entertain the appeal without condoning the delay in filing it, and whether the absence of a condonation application was a fatal defect.
Ratio Decidendi: The court held that an appeal filed after the limitation period must be accompanied by an application for condonation of delay, as per Order XLI Rule 3-A of the CPC. The absence of such an application is a curable defect, and the Appellate Court should have pointed out this lapse.
Final Decision: The court set aside the order of the Appellate Court, allowing the respondent to file an application for condonation of delay within a specified time, with the stipulation that the Appellate Court would decide on it within one month.
JUDGMENT :
VINOD CHATTERJI KOUL, J.
1. Assailed in this petition, preferred under Article 227 of the Constitution of India, is Order dated 25th July, 2020, passed by Principal District Judge, Bandipora (for short as “Appellate Court”) on an Interim Application arising out of an Appeal titled as Ghulam Hassan Bhat v. Bashir Ahmad Bhat and others, and setting-aside thereof is prayed for by petitioners. Prayer for dismissal of Appeal as also Application for grant of interim relief filed by respondent before appellate court, is also sought for by petitioners to be granted.
2. Petitioners, as pleaded in petition in hand, filed a suit for permanent injunction before Munsiff Bandipora (for brevity referred to as “Trial Court”). Alongside thereto an application for grant of ad interim relief was also filed by petitioners, in which an order dated 10th September, 2018 was passed by the Trial Court; operative portion, given the controversy involved in petition on hand, would be profitable to be reproduced hereunder:
3. Against aforesaid order dated 10th September, 2018, an appeal respondent directed before the Appellate Court on 25th July, 2020. Upon entertaining the appeal preferred by respondent, the Appellate Court passed order dated 25th July, 2020, admitted it and kept in abeyance Trial Court order dated 10th September, 2018. This is how the parties are before this Court.
4. I have heard learned counsel for parties and considered the matter.
5. Learned counsel for petitioners has vehemently urged that delay in moving appeal was writ large therefrom that was not condonable; even for condoning delay, an independent motion had not come up with memo of appeal on behalf of respondent, which was a must in law. Nonetheless, the Appellate Court, unmindful of Limitation Act providing 90 days' time in preference of appeals and more especially interim order being subject to objections that has been challenged therein, has entertained appeal, passing impugned order. Having no jurisdiction as exhorted by learned counsel for petitioners, the Appellate Court is stated to have without first condoning delay entertained, diarised and admitted appeal and that such process and exercise undertaken by the Appellate Court is in contravention to provisions of Order XLI Rule 3A(3) because same bars granting order of stay/interim direction in a time-barred-appeal unless delay is condoned. Two long years' delay, as said by learned counsel for petitioners, has not been talked of by the Appellate Court muchless noticed and/or requisitioned by the Appellate Court while passing impugned order. Judgements rendered in the cases of Madhukar Daso Deshpande v. Anant Nilkantha Deshpande and others, AIR 1984 Karnataka 40; S.M. Iqbal v. Firdous Ahmad Shah, SLJ (1995) 299; Smt. Umrao Bai and others v. Sardarilal Khatri, (1997) AIR (MP) 62; and Lokanath Biswal v. Union of India, (2008) AIR (Orissa) 33, have been relied upon by learned counsel for petitioners to aver that law qua condonation of delay has been settled as is held in these judgments and apply to the case in hand as well.
Next assertion on behalf of learned counsel for petitioners is that challenge thrown in the appeal by respondent was to an Order dated 10th September, 2018, passed by the Trial Court, which was not a final order but an ad interim order; even open to variation, modification and vacation on motion and, as such, Appellate Cour
An appeal that is time-barred cannot be entertained without a proper application for condonation of delay, and such a defect is curable if addressed promptly.
The court emphasized a liberal approach in assessing sufficient cause for condonation of delay under Section 5 of the Limitation Act, particularly when the delay is marginal and does not prejudice th....
The principle that the law of limitation must be strictly adhered to, and that a party seeking condonation of delay must provide a satisfactory explanation that demonstrates diligence and bona fides.
The law of limitation is to be strictly enforced, and parties, including the government, must provide sufficient cause for any delay in filing appeals; negligence or lack of bona fides will not justi....
The law of limitation is strict and must be adhered to; bureaucratic delays are not sufficient grounds for condoning delays in filing appeals.
Rules of limitation are meant to prevent dilatory tactics and ensure prompt remedy, and stringent conditions to explain each day's delay cannot be imposed in every case.
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