RAJINDER SINGH Vs. ABDUL AZIZ

JUDGEMENT

(1.) Impugned in the instant Letters Patent Appeal filed under Clause 12 of the Letters Patent Rules [hereinafter referred to as 'LPA' for short] is the Judgment dtd. 9/7/2024, passed by the learned Single Bench of this Court while allowing an application for condonation of delay (CM No. 6794/2023) that came to be filed by the contesting respondent (petitioner therein), namely, Abdul Aziz along with the main petition (109/2023) seeking review of the Order dtd. 18/5/2017, passed by this Court in OWP No. 878/2010, while allowing the said petition and setting aside the Order dtd. 18/2/2010 of the learned J&K Special Tribunal, Jammu, [hereinafter referred to as the 'Tribunal' for short] impugned therein.

(2.) A brief resume of the facts of the case relevant for disposal of the instant intra court appeal deserves a needful mention. One, Sh. Teja Singh, father of the appellants 1 and 2 and the grandfather of appellant no. 3 allegedly started cultivating a big chunk of land approximately measuring 85 Kanals falling under different khasra numbers and situated at village Sahano Tehsil and District Jammu, in the year 1965, which land was belonging to Noor Khan and Yousaf Khan sons of Uzar Khan and Aziz Khan son of Shukar Khan (contesting respondent no. 1/Review petitioner) initially in the capacity as tenant and thereafter as a protected tenant by paying Batai rent to them. That although right from 1965, the said late Teja Singh was peacefully and uninterruptedly cultivating the aforesaid land, but in the month of Maghar 2027 BK corresponding to November, 1970 AD, he was forcibly dispossessed by the owners of the land. Sh. Teja Singh then filed an application on 25/3/1971, before the Deputy Commissioner, Jammu, in terms of Sec. 56 of the Jammu and Kashmir Tenancy Act, SVT., 1980, [hereinafter referred to as the 'Tenancy Act' for short] which came to be transferred for disposal under law to the Assistant Commissioner, Revenue, Jammu. Assistant Commissioner, Revenue, Jammu, vide his Order dtd. 27/7/1973, dismissed the said petition and aggrieved of the same, Sh. Teja Singh preferred an appeal before the learned Divisional Commissioner, Jammu, who vide his Order dtd. 11/10/1975, remitted the matter to Assistant Commissioner, Jammu, exercising the powers of Collector, Jammu. The Assistant Commissioner, Revenue, Jammu, (Collector), subsequently allowed the application of Sh. Teja Singh vide Order dtd. 23/9/1994, directing the present contesting respondent to be evicted from the subject land. The present Respondent no. 1 assailed the Order dtd. 23/9/1994, of the learned Assistant Commissioner, Revenue, Jammu, through the medium of an appeal before the appellate Authority i.e., Director, Land Records, J&K, Jammu, but the same was dismissed vide Order dtd. 28/8/2004. Thereafter, the Respondent no. 1 filed a revision petition assailing the Order dtd. 28/8/2004, before the learned Tribunal, which allowed the same vide Order dtd. 18/2/2010. The Order dtd. 18/2/2010, of the Tribunal came to be assailed by the present appellants through the medium of a writ petition bearing OWP No. 878/2010 under Article 227 of the Constitution of India read with Sec. 104 of the Jammu and Kashmir Constitution (now rendered infructuous since 5/8/2019 vide Presidential Order C.O. 272) in this Court, which was allowed vide Order dtd. 18/5/2017. The learned Single Bench of this Court, vide the aforesaid Order dtd. 18/5/2017, passed in OWP No. 878/2010, set aside the impugned order passed by the Tribunal dtd. 18/2/2010 and upheld the Orders dtd. 23/9/1994 and 28/8/2004 respectively passed by the Assistant Commissioner, Revenue (Collector), Jammu and Director Land Records, J&K, Jammu, to the effect of the eviction of contesting respondent no. 1 Abdul Aziz from the subject land. The contesting respondent, Abdul Aziz assailed the Order dtd. 18/5/2017, of the learned Single Bench of this Court through the medium of an intra court appeal and the learned Division Bench of this Court vide Order dtd. 24/7/2017 allowed the appeal and set aside the order passed by the learned Single Bench dtd. 18/5/2017. The learned Division Bench, while passing the Order dtd. 24/7/2017, in LPA (OW) No. 63/2017 observed that the writ petition filed by the appellants under Sec. 104 of the J&K Constitution impugning the order of the Special Tribunal before the learned Single Bench was not maintainable and, accordingly, while allowing the intra court appeal, set aside the order of the learned Single Bench. The present appellants assailed the said order of the learned Division Bench dtd. 24/7/2017, in SLP before the Hon'ble Supreme Court of India and the Hon'ble Apex Court, vide Order dtd. 14/2/2023, while allowing the Civil Appeal No. 1143 of 2023 arising out of SLP, set aside the order of the learned Division Bench of this Court dtd. 24/7/2017. It was observed by the Hon'ble Apex Court in its Order dtd. 14/2/2023, that important question appears to have arisen as the High Court by a cryptic reasoning while holding the LPA to be untenable has also held the writ petition to be untenable and dismissed the same. The Hon'ble Apex Court remitted the matter back to this Court for deciding the LPA afresh in accordance with the observation of the Hon'ble Court. The LPA (OW) No. 63/2017 came up for hearing before this Court in pursuance of the directions of the Hon'ble Supreme Court, but the present contesting respondent no. 1, Abdul Aziz (Appellant therein) withdrew the same with liberty to avail remedy, if any, available under rules. The contesting respondent no. 1 subsequent to the withdrawal of the LPA, choose to file a review petition (RP No.109/2023) in respect of the Order dtd. 18/5/2017 passed by the learned Single Bench of this Court in OWP No. 878/2010. The said review petition was accompanied with an application for condonation of delay (CM No. 6794/2023) filed in terms of Rule 66 Clause 3 of the Jammu and Kashmir High Court Rules 1999 read with Sec. 5 of the Limitation Act, 1963. The learned Single Bench of this Court vide Order impugned in this LPA dtd. 9/7/2024, allowed the said application and condoned the delay in filing the review petition.

(3.) The order impugned has been assailed on the grounds that the review petition has been filed with a delay of more than 2400 days i.e., more than 6 ' years. That the review is being sought of the Judgment of the learned Single Bench of this Court dtd. 18/5/2017. That the contesting respondent no. 1, upon being aggrieved of the Judgment dtd. 18/5/2017 of the learned Single Bench of this Court, preferred to file an intra court appeal before the learned Division Bench of this Court, which came to be decided in his favour, whereupon the appellants preferred a Special Leave Petition before the Hon'ble Supreme Court. That the Hon'ble Supreme Court vide Judgment dtd. 14/2/2023, set aside the Judgment of the learned Division Bench of this Court and remitted the matter back to the learned Division Bench for being decided afresh within a period of six months. That pursuant to the directions of the Hon'ble Supreme Court, the LPA came to be listed before the learned Division Bench on 9/6/2023, 25/8/2023, 6/9/2023, and 18/10/2023, but the respondent did not pursue the same and instead sought withdrawal of the same on 6/11/2023, whereafter he filed the review petition on 20/10/2023 in respect of an Order dtd. 18/5/2017. That the respondent no. 1, who had to justify each day's delay, even did not bother to mention the number of the days of delay in filing the review petition. That the contention of the respondent no. 1 to the effect that he learnt about the Judgment dtd. 14/2/2023 of the Hon'ble Supreme Court in June, 2023, is not fair and honest, because he had duly appointed and was being represented by a learned counsel in the matter before the Hon'ble Supreme Court. That the review petition ought to have been filed by the respondent no. 1 within a period of 30 days of the Judgment of the learned Division Bench of this Court i.e., by 24/8/2017. That respondent could not have been given benefit of the provisions of Sec. 5 of the Limitation Act, because as per the Article 126 of the said Act, a review petition in respect of a judgment of a court other than the Hon'ble Supreme Court is to be filed within a period of 30 days, as against which the review petition in question was preferred after more than 2400 days i.e., more than 6 ' years. That the Hon'ble Apex Court in a catena of Judgments has laid down that each day's delay has to be explained by an applicant seeking condonation of delay. That appellants have been forced in the litigation some 50 years back when their predecessor, Sh. Teja Singh was trespassed and dispossessed by the original petitioners/owners. That although seven persons initially claimed to be the owners of the subject land, yet after passing of the eviction order by the Collector Agrarian Reforms, Jammu, on 23/9/1994 in favour of the appellants, the remaining persons except the respondent no. 1 withdrew the contest. That the respondent no. 1 is not holding any power of attorney on behalf of the remaining land owners and he asserts his ownership title only in respect of 21 Kanals out of total quantam of land measuring more than 85 Kanals. That the respondent (review petitioner) made an unfair and illegal effort to justify the filing of grossly and inordinately delayed review petition by attributing the delay to the incorrect legal advice of his learned counsel, which conduct needs to be strongly deprecated. That the 'doctrine of finality' in litigation, shall be left meaningless in case huge and inordinate delay is condoned. That the learned Single Bench of this Court fell in error in observing and concluding that the cause of action to file the review petition accrued to the respondent no. 1 only upon passing of the Judgment dtd. 14/2/2023 by the Hon'ble Supreme Court, when in fact the review has been sought in respect of the Judgment dtd. 18/5/2017 passed in OWP No. 878/2010. That the respondent no. 1 has utterly failed to assign any sufficient cause for condoning the delay which was in excess of 2400 days. That it also escaped the attention of the learned Single Bench while passing the impugned order that an applicant seeking condonation of delay has to justify and explain each day's delay. That the liberal approach adopted by the learned Single Bench while passing the impugned order was totally unjustified in the facts and circumstances of the case. That the learned Single Bench has erred in observing that the period of limitation in the case shall commence from the date when the Hon'ble Supreme Court set aside the order passed by the learned Division Bench. That without prejudice to the stand of the appellants (respondents in review petition), again inordinate delay has been occasioned in filing the review petition after passing of the Order dtd. 14/2/2023 by the Hon'ble Supreme Court. That the learned Single Bench did not appreciate the case law relied upon by the appellants and condoned the huge delay unjustifiably.