SUPPLEMENTARY LIST WP(C) No. 1818 of 2023 · High Court of Jammu & Kashmir and Ladakh

Through: Mr. Jahangir Ganee, Advocate, for caveator. … Respondents CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

O R D E R (ORAL) 25-08-2023 Heard learned counsel for the parties and perused the record.

In the instant petition filed under Article 226 of the Constitution of India, the petitioner has questioned order dated 19.6.2023 passed by respondent 1 herein upon a Revision Petition filed by the petitioner herein against order dated 10.12.2022 passed by Sub Divisional Magistrate, Chadoora, in terms whereof application seeking condonation of delay in filing an appeal against mutation no. 208 in respect of land measuring 1 kanal and 1 marla falling under Survey no. 771 situated at Mouza Khanda BK Pora, Budgam, came to allowed.

Perusal of the record reveals that the respondent herein filed an appeal supra accompanied with an application under Section 5 of the Limitation Act seeking condonation of delay caused in filing the said appeal. The explanation offered in the application for condonation of delay by the respondent herein has been that he came to know about the attestation of the W P ( C ) 1 8 1 8 o f 2 0 2 3 P a g e | 2 mutation in question in the month of May/June, 2022, after checking the revenue record of the land in question Online whereafter the applicant respondent herein approached the Tehsildar concerned on 20.07.2022 in this regard who informed him that the Patri Sarkar for the mutation is not available in the office record.

Further perusal of the record would reveal that the appeal came to be filed by the respondent herein accompanied with an application for condonation of delay supra on 27.09.2022 which ex facie appear to have been filed immediately after coming to know about the non-existence of Patri Sarkar as also the attestation of mutation in question emerging from Online check by the respondent herein in the month of May/June, 2022.

It also appears from the record that the appellate forum before proceeding to deal with the appeal filed by the respondent herein, allowed the application for condonation of delay on 23.12.2022, aggrieved whereof the petitioner herein filed the Revision Petition, which was disposed of after hearing the counsel for the parties, in particular the petitioner herein.

Perusal of the order would also reveal that while deciding the Revision Petition, the Revisional Forum has taken into consideration the record available on the file including the written submissions submitted by the appearing counsel for the parties, and after considering the arguments advanced by the counsel for the parties, dismissed the revision petition upholding the order passed by the appellate forum dated 23.12.2022.

It is not in dispute that the appeal filed by the respondent herein against the mutation in question is yet to be decided on merits. What has been decided indisputably is the application for condonation of delay after hearing the parties. A reference herein to the judgment of the Apex Court passed in case W P ( C ) 1 8 1 8 o f 2 0 2 3 P a g e | 3 titled as Collector v. Katiji reported in 1987 (2) SCC 107 being relevant and germane, becomes necessary, wherein following has been laid down: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. „Every day's delay must be explained‟ does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

Having regard to the facts and circumstances of the case as also to the principles of law laid down in the judgment supra, no ground for interference is called for in the instant petition against impugned order dated

19.06.2023. The petition being bereft of any merit is accordingly dismissed along with connected CM.

Caveat shall accordingly stand discharged.

Dismissed along with connected CM. (JAVED IQBAL WANI) JUDGE Srinagar 25.08.2023 N Ahmad