JUDGMENT
J.P. Singh, J.
1. Ghulam Qadir Dar and eight others have filed this application under Section 14 of Limitation Act seeking exclusion of time spent by the appellants in prosecuting their petition filed under Section 114 read with Order 47 of the Code of Civil Procedure seeking review of order dated 9th of November 2005 passed, on reference, by Principal District Judge, Srinagar under Section 31 of the State Land Acquisition Act and treating the appeal of the appellants against judgment dated 9.11.2005 of learned Principal District Judge, Srinagar to have been filed within the prescribed period of limitation.
2. The applicants submit that aggrieved by judgment dated 9th of November 2005 of learned Principal District Judge, Srinagar recorded in file No. 12/Reference/2/Transfer on reference, made by Collector Land Acquisition Gazigund-Baramulla Rail Project, they filed a petition under Section 114 read with order 47 of CPC seeking review of order dated 9th of November 2005. They had been prosecuting this reference with due diligence before the learned Principal District Judge, Srinagar, who vide his order dated 31st of December 2005 allowed the reference finding that there was mistake apparent on the face of records which was required to be rectified. The case projected by the applicants was found by learned District Judge to be a fit case for exercise of powers under Order 47 of the CPC. Learned District Judge accordingly while up-setting his earlier order dated 9th of November 2005, directed re-trial of the reference.
3. Aggrieved by this order of learned Principal District Judge, Srinagar on review, the respondents preferred CIMA No. 02/2006 in this Court. This Court, while allowing the appeal, held that the learned District Judge while exercising the powers of review had transgressed its limits and that the grievance of the applicants could be projected for redressal in a Court of appeal and not in exercise of power of review. The applicants were left free by the Court to approach higher forum for appropriate remedy available to them under law.
4. The applicants, therefore, urge that the time spent by them in prosecuting their review application before learned Principal District Judge, Srinagar was required to be excluded while computing the period of limitation as provided under Section 14 of the Limitation Act.
5. Shri M. A. Shah, learned Counsel for the applicants, refers to S. M. Iqbal v. Firdous Ahmad Shah reported as AIR 1994 J&K 83, Shanti Devi and Ors. v. Ram Lal reported as 1989 KLJ 335, State v. Abdul Aziz Sheikh reported as 1996 SLJ 127, Maqbool Ahmed v. Haji Ghulam Hassan reported as 1998 SLJ 1999, Mohd Yousuf Magray v. Haji Ghulam Hassan reported as 1998 SLJ 180, and Deputy Collector, Northern Sub-Division, Panaji v. Comunidade of Bambolim reported as to urge that the Court has wide powers to condone the delay to advance the cause of justice.
6. Shri Bilal Autshi has, on the other hand, while referring to Hakim Nusrat Jabeen v. State reported as 2002 (2) SLJ 569 and Riyaz Ahmed Bhat v. Abdul Majid Bhat reported as 2004 (1) SLJ 246 to urge that the plea of the applicants -appellants to seek condonation of delay was required to be rejected as condonation of delay would mean defeating the provisions of the Limitation Act.
7. I have considered the submissions of learned Counsel for the parties and the case law cited at the Bar.
Before dealing with the submissions of learned Counsel for the parties and concluding as to whether or not the time spent by the appellant in prosecuting the remedy of review was required to be excluded while computing the period of limitation, reference to what was held by the Hon’ble Supreme Court of India in Deputy Collector, Northern Sub-Division, Panaji v. Comunidade of Bambolim reported as may be advantageous.
…The question is whether the appellant was pursuing the remedy bona fide. It is contended for the respondent that there are no bona fides on the part of the State and therefore, Section 14 of the Limitation Act cannot be applied to the facts in this appeal. We are unable to agree with the counsel. The State is acting through its authorized representative and the counsel was in two minds, as to whether the appeal should be pursued under the Portuguese Code or under C. P. C. Since C. P. C stood extended to G. D. D. on September 15,1966, by which date there was a decree passed by the Reference Court, obviously the proceedings should be passed under C. P. C, as per Section 53 of Act. Therefore, the counsel was pursuing the remedy wrongly under the Portuguese Code. In consequence, the appeal came to be filed beyond Limitation. Accordingly, there are bona fides in pursuing the remedy. The State was represented by the counsel and the counsel was in two minds as to whether the appeal should be pursued under the Portuguese Code or under the Code of Civil procedure. There is a bona fide mistake on the part of the counsel in pursuing the remedy. Since the State acts through the counsel for the State and he is entitled to represent the State in all the proceedings initiated in the Court, there was no need to file Vakalatnama but memo of appearance would be sufficient. Accordingly the order of Judicial Commissioner is set aside.
8. Remedy of review is a statutory remedy available to a litigant who, if he had not filed an appeal, was entitled to seek review of the Judgment delivered by a Court. Prosecution of this statutory remedy cannot thus, by any stretch of reasoning, be termed as prosecuting a remedy without due diligence, particularly when a litigant had succeeded in seeking review of the Judgment of which he was aggrieved and which Judgment, had later been set-aside in review.
9. Refusing the prayer of such litigant to exclude the period spent by him in prosecuting the remedy of review and contesting the appeal preferred against the Judgment on review by the opposite party, would in my opinion, result in injustice to such litigant, for it would in other words amount to closing the doors of such litigant to exercise his right of appeal which was available to him when, rather than filing an appeal he had opted to seek review of the Judgment by approaching the same court which had passed the order.
10. The dispute between the parties in the present case is essentially a dispute of their rights which they claim in the immoveable property i.e. land for which compensation stands awarded by the State Government which had acquired it for the public purpose. Technical rules of limitation, should not, in my opinion, operate in such a way that they come in the way of the court in adjudicating, upon the rights of the parties on merits of their case.
11. I am supported in taking this view by what was held by Hon’ble Supreme Court of India in Union of India and Ors. v. West Coast Paper Mills Limited and Anr. reported as AIR 2004 SC 3079. Law propounded by Supreme Court of India in this respect reads thus:
———However, Section 14 of the Limitation Act is wide in its application, in as much it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression “other cause of like nature” came up for the consideration of this Court in Mohan Singh Oberai and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so-called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right.
12. This Court, while deciding CIMA No. 02/2006 had left the applicants/appellants free to approach higher forum by availing the appropriate remedy, meaning thereby that right of appeal of the applicants had, in a way been preserved by the Court while handing down its Judgment in CIMA No. 02/2006 on 10-08-2006 holding that the learned Principal District Judge, Srinagar had transgressed its powers in upsetting its earlier Judgment and that the pleas raised by the applicants before the court of review could be raised by the applicants in appeal before the higher forum.
13. In view of the above discussion and the law laid down by the Hon’ble Supreme Court of India and reiterated in the other Judgments of this Court cited by learned Counsel for applicants, I am not inclined to accept the submissions of learned Counsel for respondents that law of limitation had to be applied strictly regardless of the injustice which the strict application of the law of limitation may result in on the rights of the parties.
14. I am satisfied that the appellants have succeeded in making out a case for excluding the time spent by them in prosecuting the remedy of review before learned District Judge Srinagar and the time which this Court had taken in deciding CIMA No 02/2006.I am further satisfied that additional eight days delay in filing the appeal should not come in the way of the applicants /appellants in maintaining their appeal because this time was required by the applicants in getting the certified copies of the Judgments, Orders and documents which they had to annex with the memo of appeal to demonstrate and project their grounds of appeal.
15. For all what has been said above, I would hold that the applicants/appellants are entitled to the exclusion of time spent by them in prosecuting the remedy of review before learned District Judge Srinagar and in defending CIMA No. 02/2006 in this Court. This time shall accordingly stand excluded while computing period of limitation in applicants filing the appeal. I am further satisfied that there was sufficient cause which prevented the applicants-appellants from filing the appeal immediately after the Judgment in CIMA No. 02/2006 was announced. It is common knowledge that more than a week’s time is usually spent by a litigant in getting the certified copies of the Judgments and orders from the courts. The applicants/appellants in this case too, have annexed various documents with the memo of appeal and the time spent by them in presenting the memo of appeal after pronouncement of Judgment in CJMA No. 02/2006, cannot by any stretch of reasoning be termed as unjustified.
16. For the foregoing reasons CMP No. 328/2006 is allowed and CIA No. 56/2006 is treated to have been filed within time. Registrar Judicial shall list CIA No. 56/2006 in the first of December 2006 for motion hearing.