Mohammad Shafi Itoo vs Shabir Ahmad Teeli
2021 Latest Caselaw 880 j&K/2

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                       IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                          AT SRINAGAR

                                                 CM /COD) No. 791/2020 in
                                                 RFA No. 06/2020
                                                 CM No. 792/2020.


                  Mohammad Shafi Itoo
                                                                       Applicant/Appellant(s)

                                                Through: Ms. G. A. Lone, Advocate
                               V/s
                  Shabir Ahmad Teeli.
                                                                         .......Respondent(s)

Through: Mr. Wajid Haseeb, Advocate.

CORAM:

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

1. This is an application seeking condonation of delay of 240

days in filing the appeal against the judgment and decree

dated 13th March, 2019, passed by the learned Pr. District

Judge, Kulgam.

2. The applicant states that against the judgment and decree

(supra), an appeal was preferred in forma pauperis in the

month of July, 2019, which was later on withdrawn with liberty

to file a fresh one as per order dated 10th December, 2019,

passed by a coordinate Bench of this Court. The reason stated

for withdrawal of the appeal was that the same had

erroneously been filed through a counsel whereas, it ought to

have been filed in person inasmuch as, the appeal was in

forma pauperis as an indigent person. Finally the present

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appeal was preferred, on 11th February, 2020. Thus there is a

delay of 240 days.

3. With a view to explain the delay in filing the present appeal,

the applicant has attributed the same to the death of his

mother in June, 2019, and thereafter on account of preferring

an appeal in forma pauperis which was defective having not

been filed in person. The applicant further claims that the

reason why delay was occasioned from the date of withdrawal

of the appeal in forma pauperis to the actual filing of the

present regular first appeal is on account of the fact that he

was not in possession of sufficient means to pay the court fee.

It is thus stated that the delay was neither deliberate nor

intentional but occasioned on account of the facts mentioned

hereinabove.

4. Heard counsel for the parties.

5. There is no doubt that the appellant herein had preferred an

appeal in forma pauperis in the month July, 2019, was though

filed with some delay but the delay was not such as could not

be condoned especially keeping in view the assertion of the

applicant that there was a bereavement in the family in the

month of June, 2019. The applicant thereafter, appears to

have pursued the appeal which was later on found to be

defective but was permitted to withdraw the same by the Court

by virtue of order dated 10th December, 2019, and hence the

present appeal. The delay occasioned in the interregnum also

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has been explained on the ground that the applicant was not

possessed of sufficient means to provide for the court fee

etcetera and ultimately upon arranging the said amount was

able to file the present appeal.

In my opinion, the applicant has succeeded in explaining

the delay sufficiently to justify the delay in filing the

present appeal.

6. For the reasons, the application is allowed and the delay of

240 days caused in filing the present appeal is condoned.

COD No. 791/2020, disposed of.

7. Registry is directed to list the main appeal on 2nd September,

2021.

(DHIRAJ SINGH THAKUR) JUDGE

Srinagar 10th August, 2021.

"Ab. Rashid"

Whether the order is reportable Yes/No.

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