Advocates:
['C M GUPTA', '', 'SHALINI SHARMA', 'P S CHANDEL', '', 'SARFARAZ HAMID']

Sr. No. 1 & 2

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CM(6700/2021

CM(7269/2021)

in SWP 2882/2001

Prabhu Dayal Sharma ….Applicant(s)

Through: - Mr. C. S. Gupta, Advocate

v/s

The Air Commander CPSO and others …. Non-applicant/Respondent(s)

Through: - Mr. Vishal Sharma, ASGI

Coram: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

1.

In the instant application, applicant seeks condonation of delay in

filing the restoration application for restoration of SWP No. 2882/2001, to its

original number dismissed in default on 31.03.2009.

2.

The background facts those emerge from the case in hand are that

applicant was enrolled in the Air Force in the Trade of NC (E) LASOR and

after rendering 15 years 101 days service was discharged on 22.05.2001

without any reason. Aggrieved by the said order, applicant filed a writ petition

being SWP No. 2882/2001, which came to be dismissed in default for non-

appearance on 31.03.2009.

2 CM Nos. 6700/21, 7269/2021

3.

It is contended that the applicant was advised by his counsel that

since the matter is of a civil nature, he need not to attend the Court on each

and every date of hearing. It is further stated that on asking his counsel about

the case, applicant was informed that the case is pending in the Court and

thereafter he was informed that his case has been transferred to Armed Forced

Tribunal, Jammu Bench and only last week he came to know that his case has

been dismissed in default on 31.03.2009.

4.

It is being stated in the instant application that there has been

delay of 4494 days in filing the restoration application for restoration of the

main petition and that the delay is neither deliberate nor intentional, but for

the cause and reasons spelt out in the instant application.

5.

Non-applicants/Respondents have filed objections in opposition

to the instant application and seek dismissal of the same on the premise that

the applicant has been negligent and failed to show due diligence to prosecute

the writ petition and after more than 13 years, restoration of the writ petition is

being sought. It is further stated that it was the duty of the applicant to enquire

about the status of his case and that the negligence cannot be shifted on to the

counsel.

6.

Heard learned counsel for the parties and perused the material on

record.

7.

Perusal of the record reveals that nothing is being stated in the

application as to what prevented the applicant to file restoration application

for restoration of the main petition, within time and where the time was

consumed.

3 CM Nos. 6700/21, 7269/2021

8.

It is established that the law of limitation has to be applied with

its entire rigor prescribed by a statute. Although Section 5 of J&K Limitation

Act Samvat, 1995 provides for extension of the period of limitation in certain

cases, and applicant seeking such extension is required to satisfy the court that

there has been a sufficient cause for not preferring the appeal or making the

application within the prescribed period.

9.

The Hon?ble Apex Court in Perumon Bhagvathy Devaswam

vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated besides

others the following principle qua an application under Section 5 of the

Limitation Act:

<(iii) The decisive factor in condonation of delay, is not

the length of delay, but sufficiency of a satisfactory

ex