Appellate Authority Must Consider Application For Condonation Of Delay Before Addressing Merits Of Time-Barred Appeal: J&K High Court
Underlining a crucial procedural requirement regarding time-barred appeals, the High Court of Jammu and Kashmir and Ladakh has maintained that appellate authorities must first adjudicate applications for condonation of delay before addressing the merits of a time-barred appeal or the operation of an impugned order.A bench of Justice Rahul Bharti clarified, “...When the appeal is...
Underlining a crucial procedural requirement regarding time-barred appeals, the High Court of Jammu and Kashmir and Ladakh has maintained that appellate authorities must first adjudicate applications for condonation of delay before addressing the merits of a time-barred appeal or the operation of an impugned order.
A bench of Justice Rahul Bharti clarified, “...When the appeal is time-barred, then before an appellate forum/authority comes to deal with such a time-barred appeal, nothing is meant to be done with respect to the operation of an impugned order in appeal without first adjudicating with respect to condonation of delay if sought by the appellant."
Background of the Case:
The petitioner, Hem Raj, alongside six other individuals, filed proceedings under Sections 19 and 27 of the Agrarian Reforms Act, 1976, seeking the restoration of possession of land in Udhampur. This land, comprising several khasra numbers, was allegedly occupied forcibly by Rajan, Ramesh Chander, and Dharmu.
The Assistant Commissioner, Revenue (Collector First Class), Udhampur, after over 13 years of pendency, issued an order directing the restoration of the said land to the petitioners and correcting the girdawari entries. The Tehsildar, Udhampur, was instructed to implement the order, including evicting the occupiers with police assistance if necessary.
Aggrieved by this order, Respondents Rajan and Ramesh Chander, two of the alleged occupiers, filed an appeal under Section 21 of the Agrarian Reforms Act, 1976, before the Commissioner Agrarian Reforms, Udhampur (Additional Deputy Commissioner). However, this appeal was filed beyond the prescribed 60-day limitation period under Section 22 of the Act.
The appellate authority, without first addressing the condonation of delay, issued an order on March 22, 2024, staying the operation of the impugned order and directing the parties to maintain the status quo until the next hearing.
The petitioner challenged the stay order, arguing that the appellate authority overstepped its jurisdiction by issuing the stay without first adjudicating the condonation of delay application.
Court's Observations:
Adjudicating the matter Justice Bharti noted Section 22 of the Agrarian Reforms Act, 1976 which prescribes a 60-day limitation period for appeals and mandates the application of the Limitation Act, 1963.
Expounding on the interplay between Sections 3 and 5 of the Limitation Act Justice Bharti observed that Section 3 acts as a bar against maintaining time-barred suits or appeals, which must be dismissed unless Section 5's provisions for condoning delay are invoked. The court underscored that the jurisdiction to address the merits of an appeal does not commence until the delay is condoned.
“Entertainment of an appeal which is preferred within a period of limitation prescribed is not subject to discretion of an appellate authority and its adjudication on merits is meant to take place. However, when the appeal is time barred, then before an appellate forum/authority comes to deal with such a time barred appeal, nothing is meant to be done with respect to operation of an impugned order in appeal without first adjudicating with respect to condonation of delay if sought by the appellant”, the court opined.
Highlighting the logic for sticking to such an approach the court reasoned,
“It is only by this correct legal approach on the part of an appellate authority/forum that scope for filing of present like writ petition or proceedings before superior courts can be curbed so as to save precious public time getting lost in dealing with unwarranted litigation coming against interim indulgence of and on the part of an appellate authority in doling out stay order in time barred appeal/proceedings whatsoever”.
In order to fortify this proposition Justice Bharti refrenced a Privy Council Judgment in Krishnasami Panikondar Vs. Ramasami Chettiar and others” (1917 AIR Privy Council 179) wherein it was observed,
“.. it is duty of litigant to know the last day on which he can present his appeal and if through delay on his part it becomes necessary for him to ask the Court of exercise in his favour power condoned in section 5 of the Indian Limitation Act, the burden 27. rests on him or adducing distinct proof of the sufficient cause on which he relies”.
In light of these observations, the court directed the Additional Deputy Commissioner Udhampur, to first adjudicate the condonation of delay application.
“Only by first dealing with the said application for condonation of delay on merits, the rest of the matter to be taken up for adjudication in the event the application for condonation of delay gets allowed”, the court concluded.
Case Title: Hem Raj Vs UT of J&K & Ors
Citation: 2024 LiveLaw (JKL) 226