Rehmat Javed v. Financial Commissioner Revenue J&K

enable the court to do substantial justice to the parties by deciding the case on merits and the word 'sufficient cause has to be liberally construed in order to promote the cause of substantial justice. 3 WP(C) No. 643/2023

05. Learned counsel for the petitioner further pointed out that he has placed sufficient material before the revisional authority and has also produced the medical record pertaining to the ill- health of the petitioner and his family members during Covid-19 pandemic, which ought to have been given due weightage while deciding the revision petition, but the same has not been given due weightage and the orders have been passed without application of mind and without appreciating the material facts and the record produced before the revisional court. ARGUMENTS ON BEHALF OF RESPONDENT NO. 1

06. On the asking of the Court, Mrs Monika Kholi has appeared on behalf of respondent no.1.

07. It is submitted that the Mutation Nos. 449 dated 13-02-1998 and 451 dated 24-02-1998 of estate Khanpur Nagrota, Jammu came to be attested in favour of the petitioner herein on the basis of two registered sale deeds and both these mutations were challenged by the private respondents in appeal before Regional Director Survey & Land Records who vide order dated 11-06-2016 set aside the mutations by holding that land in question had vested in the respondents under the provisions of Agrarian Reform Act and as such cannot be transferred . It has been further submitted that the petitioner challenged this order of Regional Director Survey & Land Records by way of two Revision petitions before Financial Commissioner and the same got dismissed in default vide court order dated 02.01.2019, against which the application seeking restoration has been filed on

08.03.2021. Learned counsel for the petitioner in his restoration application pleaded that the non-appearance of the petitioner was neither deliberate nor intentional as the petitioner was unwell during that time and was also of the 4 WP(C) No. 643/2023 view that his counsel was actively pursuing the matter.

08. That the petitioner came to know about the order of disposal on 13-02-2021 and thereafter immediately filed the application that the counsel of the petitioner did not inform the applicant about the dismissal of the petition and relying upon the judgment of Supreme Court (AIR 1907 SC 1353), Learned Counsel pleaded that the petitioner cannot be denied the right of substantial justice as the disposing of matter should be on merits.

09. Learned counsel for the respondent therein resisted the said application seeking restoration before revisional authority by arguing application was time barred, having been filed after two years when the prescribed period for filing is only 30 days.

10. The two Revision petitions filed by the petitioner before revisional court were dismissed in default on 02.01.2019 due to absence of the petitioner on four consecutive hearings.

11. The application seeking restoration has been filed on 08-03-2021 before Financial Commissioner i.e after more than two years when the period prescribed for filing restoration application is 30 days and the same was dismissed vide order dated 20.08.2022 which is impugned in present petition. LEGAL ANALYSIS

12. Heard learned counsel for the petitioner at length and perused the record.

13. Admit.

14. With the consent of learned counsel for the parties, the case is taken up for final disposal.

15. The primary issue which has been raised by the petitioner in the instant writ petition is that the orders impugned dated 20-08-2022 and 02.01.2019 are 5 WP(C) No. 643/2023 required to be quashed on the ground that the respondent no.1 has failed to decide the case on merits and technicalities since the jurisdiction invoked by the petitioner is by way of revision petition before respondent no. 1, over which the question of law was required to be taken into consideration.

16. Learned counsel appearing on the behalf of petitioner narrated circumstances in which petitioner was unable to attend the proceedings before the Respondent No 1 and the concerned counsel did not inform the petitioner about the dismissal of the revision petition and the petitioners got the knowledge about dismissal on 13.02.2021.

17. The writ petition has been primarily filed by the petitioner, relying upon Hon'ble Supreme Court guidelines that period from 15-03-2020 to 28- 02-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws. Since petitioner has performed his part after getting recovered from his ill- health filed an application seeking restoration of the revision petition on 08.03.2021, which is well within the period of limitation. Surprisingly, the same has been dismissed by the Respondent No.1 on 20-08-2022 which amounts to gross miscarriage of Justice.

18. The expression 'sufficient cause‟ employed by legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of Justice. It is a fairly well settled law that “sufficient cause” should be given liberal consideration so as to advance sustainable justice. The Supreme Court in the matter of Collector Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, while construing the meaning 6 WP(C) No. 643/2023 of “sufficient cause” under Section 5 of the Limitation Act, 1963, has held that: - “The legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties 'merits'. The expression by disposing of matters on "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. When 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. substantial justice and is no presumption 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. 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.” that delay There 7 WP(C) No. 643/2023

19. Similarly, the Supreme Court in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 observed that sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide. Paragraphs 11 and 12 of the report state as under: - “11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal v. The Administrator, Howrah