Decided on December 27,2006

Gh Nabi Kashkari Respondents


- (1.) THIS appeal is directed against Order dated 17 -07 -2006 of learned 2nd Additional District Judge, Srinagar dismissing appellants application for condonation of delay in filing appeal against decree and judgment dated 31st July, 2000 of City Judge, Srinagar in Civil Suit titled abdul Gafoor Kashtkari versus State, and consequently the State appeal too as having been filed beyond the prescribed period of limitation.
(2.) THE State of J&K had sought condonation of delay in filing appeal which was delayed by about eleven months on the plea that neither had it any notice of the suit nor was it summoned by the court, and that, it was only after it had received a latter from its standing counsel of General Administration Department on 18 -7 -2001 that it came to know of passing of decree against the State.
(3.) LEARNED 2nd Additional District Judge, Srinagar did not find any merit in the grounds urged by the State to seek condonation of delay in filing appeal and rejected its application by recording the following finding: "From the perusal of file, it transpires that ld. 4th Additional District Judge Srinagar submitted this suit on 07.11.1997 to the ld. Principal District Judge, Srinagar for transferring the same to the court for disposal under law, as the pecuniary jurisdiction of the Sub -Judges was enhanced. I have gone through the record of the trial court also, which reveals that the file has been received on 11.12.1997 by the court of City Judge Srinagar, in which the ld. Counsel for the defendant No.2 appeared. Then on subsequent dates i.e. 02.05.1998, 15.05.1998, 28.09.1998, 13.10.1998, 30.04.1999, 05.05.1999, 07.06.1999, 18.06.1999, 12.08.1999, 20.10.1999, 26.11.1999, 17.12.1999, 18.02.2000, 27.03.2000, 19.04.2000, 07.07.2000 and 26.07.2000, the counsel for the appellant/ applicant have caused their appearance before the trial court and ultimately the judgment and decree was passed by the ld. Trial court on 26.07.2000 after hearing the ld. Counsel for the parties. I refrain to comment as to why the State has not been defended. It irks in my mind a question as to what should be the role of a lawyer in the court. It should be positive and helping one. He must be loyal to his client as well as to the court. He is custodian of trust, which a litigant whether he may be a private or Govt. reposes in him, if the betrays in any way, the result would be the miscarriage of justice. If remembers me the saying of an immanent Lawyer late C. K. Daftari who once told his junior colleague, Mr. Fali. S. Nariman (now at present Senior Lawyer of the Honble Supreme Court), as under: - Always remember, Fali, it is better to spend more time for thinking about a case than merely reading the brief.." (Indian Express 31 -03 -2000) In the instant case, the lawyers have caused their presence on behalf of the State, perused the brief, but without having spent more time for thinking on the case that is why the appellant/ applicant has failed to defend its case properly. The next lacuna is the role of functionaries of the State, who took matter casually. If the court sends a summon, the functionaries seldom cares to cause their appearance before the court of law. The result is that the State suffers and thus great loss is caused to the property of the State and also the State exchequer. On the one hand, there is negligence on the part of penal of lawyers representing the State. On the other hand the appellant/ applicant cannot say that he was ignorant about the proceedings of the case. The authorities relied by ld. Counsel for the appellant/ applicant does have no applicability on the facts and circumstances of this case. There is no doubt about this fact that where there is no gross negligence or deliberate in -action, the courts generally should grant condonation and the word sufficient cause used in section 5 of the Limitation Act must receive a liberal interpretation, so as to advance the cause of justice. In the instant case, there is negligence on the part of the State to defend its case and it does not lie in the mouth of the appellant/ applicant to say that he was not at all summoned by the ld. Trial Court. The State functionaries have shown a casual attitude alongwith lawyers who represented the case at different levels, therefore, does not deserve grant of condonation, which is hereby rejected. Since the appeal has been filed beyond the period of limitation, therefore, the same shall also stand dismissed as time barred. File to go to records after due completion. Announced 17.07.06 2nd Additional Judge Judge Srinagar. At the hearing of this appeal, Mr. Manzoor Ahmed Dar, learned counsel for the plaintiffs/ respondents urged that States appeal was not maintainable because the impugned order was not appealable under the Code of Civil Procedure. Meeting this preliminary objection, Mr. J.H.Reshi, while supporting the maintainability of the appeal urged in the alternative that if the appeal was not maintainable the same may be treated as a Civil Revision to prevent injustice which had been caused to the State because it stood deprived of its right to contest the decree, on a technical approach adopted by the Ist Appellate Court in considering as to whether or not there was sufficient cause which prevented the State from preferring an appeal against the decree within the prescribed period.;

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