Srinagar, Dec 7: The High Court of J&K and Ladakh has imposed costs of Rs 2 lakh on Director Health Services Kashmir (DHSK) for resorting to repeated frivolous litigation to “keep hanging a legal assistant for nearly 20 years”.
Dismissing a petition filed by DHSK against an order the court had passed on May 14, 2018, a bench of Justice Atul Sreedharan also ordered that the amount of Rs 2 lakh be paid to the legal assistant, Iqbal Ahmad Baqal, within thirty days and gave liberty to J&K government to recover the same from the Director Health Services, Kashmir.
The court observed that City Judge Srinagar had directed the DHSK and another to remain present before it on May 30, 2018, failing which appropriate proceedings as warranted under law were to be initiated.
It said that DHSK did not appear before the Executing Court (City Judge) as required.
“Instead the present petition was filed against the order of the Executing Court, stating that the order passed by the Court of Execution is bad in law and on facts as the decree given by the learned Trial Court in favour of the respondent (DSHK) herein has already been complied with and, therefore, there was nothing further to fulfill in the decree passed by the learned Trial Court,” the court said.
Before imposing the costs on DHSK, the court observed that some brief facts of the present case were to be stated.
The DHSK and another officer (petitioners) were the defendants in the civil suit filed by the Baqal as plaintiff before the Court of City Judge, Srinagar on July 1, 2001.
The suit was decreed by the trial Court in favour of Baqal on June 5, 2003. It was decreed as ex-parte defendants (DHSK, another officer) who after being served, remained absent and, therefore, ex-parte proceedings were initiated against them.
On October 17, 2001, evidence was recorded ex-parte and thereafter defendants (DHSK and another) filed an application for setting aside the ex-parte proceedings and thereafter once again remained absent which resulted in the dismissal of their application seeking setting aside of the ex-parte proceedings, on February 7, 2003.
“Therefore, it is clear from the conduct of the petitioners that they had knowledge of the pendency of the suit before the trial court as they had filed the application for setting aside the order, whereby they were declared ex-parte,” the court said.
The court noted that after the suit was decreed, appeal was not filed by the petitioners challenging the judgment and decree passed by the trial court within prescribed period of limitation, which, it said, resulted in the dismissal of the first appeal on the ground that the same was time barred and filed without an application for condoning the delay.
The court underscored that thereafter, when execution proceedings were initiated, the petitioners filed a revision petition before the Principal District Judge, Srinagar, which was also dismissed.
“Thereafter, the writ petition was filed before this Court which too was dismissed in default,” it said.
The court observed that the petitioner moved an application for restoration of the writ petition along with an application for condonation of delay of 550 days, but that was also dismissed by it on April 23, 2015.
“The conduct of the petitioners reveals that it was casual and careless about the manner in which it was prosecuting the case”.
While the court observed that after having failed in the first appeal, revision and the writ petition, the petitioners filed a second appeal against the judgment and order of the First Appellate Court after a delay of 13 years, 9 months and 20 days, it said: “This court dismissed the second Appeal on the ground that the petitioners did not show any good or sufficient grounds to condone the unexplained and
inordinate delay,” it said.
The order dismissing the second appeal, it said, was passed on March 25, 2021.
This petition, the court said, was filed in 2018 with the contention that the Executing Court did not appreciate the fact that the petitioners had already complied with the directions given in the decree in the year 2003.
The senior counsel N A Beigh, appearing for the respondent (Baqal) submitted that the correct forum for the petitioners to make this submission was before the Executing Court itself.
He submitted that the petitioners chose to file a present petition in 2018 and the same had been pending for the past five years and was listed during this period for almost 15 times.
“This court is in agreement with the argument put forth by the senior counsel for the respondent,” the court said. “If the petitioners were aggrieved by the order passed by the Executing Court, they had an opportunity to go before it and demonstrate there that the decree passed by the Trial Court was already complied with and there was no reason for any execution.”
However, instead, the court said, it has chosen to further delay the proceedings by another five years by filing this petition.
The court observed that the respondent (Baqal) who was recipient of an order in his favor in the year 2003 had been kept hanging for twenty years thereafter by repeated frivolous litigation by the petitioners.
Eventually, the court imposed costs of Rs 2 lakh on DHSK.
It listed the matter on March 11, 2024 at the top of the list for the purpose of securing compliance.