Mohammad Abdullah Wani And Anr vs Mst. Naseema And Ors
2021 Latest Caselaw 703 j&K/2

                                                               Serial No. 230
                                                              After Notice List


         IN THE HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                     (Through Virtual Mode)


                                                    OWP No. 1149/2017


Mohammad Abdullah Wani and Anr.
                                                                 ..... Petitioner(s)
                            Through: -
                 Mr. Syed Manzoor Ahmad, Advocate
                                  V/s
Mst. Naseema and Ors.
                                                               ..... Respondent(s)

Through: -

None

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge (ORDER) 05.07.2021

There is no scope for arraying the Principal District Judge, Budgam as

respondent, simply because the Presiding Officer has decided the matter.

In the above background, the respondent No. 2, shall stand deleted from

the array of respondents.

Registry to update the cause title of the petition.

In the instant petition, petitioners are seeking setting aside of order dated

10.07.2017, passed by the Principal District Judge, Budgam, in case titled

Mohammad Abdullah Wani and Anr. Vs. Mst. Naseema and Anr., in terms

whereof the application of the petitioners seeking condonation of delay in filing

the civil Miscellaneous appeal against the Judgment and decree dated

09.07.2013, passed by the learned Sub Judge, Budgam in case titled

Mohammad Abdullah Wani and Anr. Vs. Mst. Naseema, stands rejected on the

ground that no sufficient cause is shown by the petitioners to seek condonation

of delay in filing the appeal after a period of one year.

Perusal of the impugned order reveals that the suit filed by the

petitioners for the relief of decree of declaration with consequential relief of

injunction against the respondent No. 1, which came to be dismissed by the

learned Sub-Judge, Budgam vide Judgment dated 09.07.2013. Petitioners have

obtained a certified copy of the Judgment and decree on time, thereafter

approached their counsel for challenging the Judgment and decree and were

having the impression that the said counsel have filed the appeal within the

time, however, they got the knowledge that the counsel instead of filing the

appeal, filed a suit, which fact came to their knowledge on approaching the

counsel for seeking legal assistance on 22.09.2015. Petitioners had also while

filing the application, seeking condonation of delay, pleaded the said facts

before the Court below and the respondents had in the objections in opposition

to the application, seeking condonation of delay taking a categorical stand that

the petitioners had full knowledge of not filing the appeal and there is no

sufficient cause shown for seeking condonation of delay.

The Court below on hearing the parties and after perusal of the pleadings

and records, came to a definite conclusion that there is no sufficient cause

shown by the petitioners, seeking condonation of delay in filing the appeal.

Learned Judge has while rejecting the application referred to the Judgment

rendered by this Court as also by Hon'ble the Supreme Court.

The respondents and their counsel are not appearing in this matter for a

considerable time now, leaving no option for the Court but to proceed in ex-

parte, therefore, the respondents are set in ex-parte.

There is no dispute in application of the law to show sufficient cause for

seeking condonation of delay in filing the petitions/appeals by showing the

cause for seeking such delay, but in the instant case, the petitioners had taken a

definite stand that they have timely approached their counsel to seek

appropriate proceedings for challenging the Judgment and decree and their counsel who had instead of filing the appeal, filed a suit, which is also brought

to the notice of the Court. The cause pleaded by the petitioners is not a subject

to be agitated in the matter of seeking condonation of delay in filing the appeal,

but the petitioners had shown the cause which resulted in defeating the cause of

justice. Positive approach adopted by the Courts in dealing with the matters of

condonation of delay is also no more res-integra. This Court and the Hon'ble

Apex Court has already laid down the guidelines and norms for dealing with

the cases, for condonation of delay. In the present proceedings, the petitioners

have every right to seek decision before the appellate Court against the

Judgment and decree on the strength of the pleadings in the matter, which

because of the decision rendered in the application is closed for all times to

come.

In the above background, the instant writ petition is allowed and the

order 10.07.2017, passed by the Principal District Judge, Budgam, is set aside.

The application seeking condonation of delay is allowed and delay condoned.

Principal District Judge, Budgam shall decide the appeal on merits.

Disposed of.

(Ali Mohammad Magrey) Judge

SRINAGAR 05.07.2021 "Mohammad Yasin Dar"

MOHAMMAD YASIN DAR 2021.07.06 10:41 I attest to the accuracy and integrity of this document