Reserved On: 22.03.202 vs State Of J&K And Others
2021 Latest Caselaw 567 j&K/2

Citation : 2021 Latest Caselaw 567 j&K/2
Judgement Date : 20 May, 2021

Jammu & Kashmir High Court - Srinagar Bench

Reserved On: 22.03.202 vs State Of J&K And Others on 20 May, 2021

           HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR
                          ....
                             CR No. 26/2018
                                                      Reserved on: 22.03.2021
                                                   Pronounced on: 20.05.2021
Ghulam Mohammad Bhat and Anr.
                                                      . . . . . . . Petitioner (s)
                                Through:     Mr. M.I.Qadri, Sr. Adv. with
                                             Mr. Naveed Gul, Advocate

                             Versus
State of J&K and Others
                                                       . . . . . . Respondent(s)

                                Through:     Mr. Irfan Andleeb, Dy. AG

CORAM:
    HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                          JUDGEMENT

1. The revision has been filed against the order dated 26.02.2018 passed

by Munsiff, Pulwama (for brevity "Trial Court") allowing Application

under Section 5 of Limitation Act and Application under Order IX

Rule 13 of the Code of Civil Procedure, condoning delay and setting-

aside judgement and decree dated 30th April 2016.

2. The order impugned has been challenged by petitioners precisely on

the following grounds:

(a) The application filed by respondent no.3 in terms of Order IX Rule 13 CPC before the Trial Court was time barred and explanation vis-à-vis delay was somewhat cryptic in nature but the Trial Court even then has allowed the application and set- aside decree dated 30.04.2016.

(b) The Trial court has invoked the procedure by deciding the application under Order IX Rule 13 CPC along with application seeking condonation of delay, without first discussing and deciding condonation of delay application. The Trial court was

CR no.26/2018

required to decide the application for condonation of delay first, after seeking objections from the other-side and only thereafter decide the application under Order IX Rule 13 CPC. The Trial Court has committed error apparent on the face of record, by allowing both the applications at the same time, as such, committed wrong, which renders impugned order bad in law and deserves to be set aside, as such.

3. I have heard learned counsel for the parties and perused the record.

4. It is the submission of Mr. M. I. Qadri, learned senior counsel

appearing for the petitioners, that the Trial Court has adopted a novel

procedure in this case while deciding the application under Order IX

Rule 13 CPC along with application seeking condonation of delay. It

is submitted by him that the Trial Court had to seek objections to the

application for condonation of delay from other-side. Since the

question with regard to the condonation of delay was to be considered

and decided first,the application seeking setting-aside of the decree,

was to be taken up only after the application seeking condonation of

delay was considered and decided. It is contended that the Trial court

has committed wrong by deciding/allowing the application for setting

aside the decree without seeking objections from and hearing the

petitioners. Diarizing and entertaining of application for setting aside

ex parte decree was dependent upon the outcome of application for

condonation of delay. If the condonation of delay is rejected, the result

would be that application under Order IX Rule 13 CPC is to be

dismissed as being time barred. It is also contended that the Trial Court

by allowing both the applications by composite order has not only

committed procedural wrong but has also passed the order impugned

CR no.26/2018

regarding setting aside ex-parte of decree without giving the

petitioners opportunity of being heard or to contest the same.

5. Mr. Irfan Andleeb, learned Dy. AG appearing counsel for the

respondents, submits that there is no wrong in passing the order

impugned, whereby both the applications have been allowed. The

Trial court is said to have passed well-reasoned order and therefore the

revision petition is liable to be dismissed.

6. Considered the arguments put forth by learned counsel for parties and

perused the record on file. I am of the opinion that the Trial court by

allowing both the applications by composite order has committed

procedural wrong and the order impugned insofar as it relates to

setting aside of ex parte decree has passed without giving other-side

opportunity of hearing to contest the same, thus, the order under Order

IX Rule 13 is concerned is wrong.

7. While going through the order impugned, it appears that the Trial

Court, without proper application of mind, has allowed the application

seeking setting aside of ex parte decree as is evident from operative

portion of judgment dated 26.02.2018, which reads as under:

"To sum up, it is evident that the application under Order 1X Rule 13 CPC is moved by the above named Defendant No. 3 is time barred, however, the explanation viz-a-viz delay is somewhat cryptic in nature while as on the other side public purpose is subject matter of the above captioned judgement/ decree and only the question of compensation is to be assessed and evaluated by the officials of the Irrigation Department and inconvenience caused to the above named plaintiff(s) can be compensated monetarily and by this very way the cause of justice will be advanced so far the rival claim in the above captioned suit is concerned. Accordingly, the application moved by the above-named non-applicant/plaintiff No. 3 under Order IX Rule 13 of Civil Procedure Code is allowed subject to costs of Rs. 6000 (six thousand only) and the delay so cause viz- a-viz presentation of the said application is condoned under Section 5 of Limitation Act and the judgment followed by decree as passed in File No. 116/N date of institution 22.02.2006 date of decision 30.04.20126 is set aside and the civil clerk is directed to call the

CR no.26/2018

original file from the record room and list the same before this court for further proceedings on 8th of March 2018."

8. Perusal of application for condoning delay filed by respondent no.3

before the Trial Court would reveal that for seeking condonation of

delay, it has been stated that respondent no.3 (applicant) got

knowledge of judgement on 26.10.2016 and when non-applicants

(petitioners herein) presented the judgement in the office of

respondent no.3 and due to winter vacation of judiciary, respondent

no.3 could only approach standing counsel on 28.01.2017 and certified

copy of judgement was obtained on 23.02.2017, after which

respondent no.3 applied with legal position of the case.

In the present case, the Trial Court has passed impugned order

without first independently deciding application for condonation of

delay. The Trial Court has exceeded its jurisdiction while passing the

order impugned.

9. For the reasons discussed above, revision petition on hand is allowed

and impugned Order dated 26.02.2018 passed by Munsiff, Pulwama,

is set-aside. The Trial Court shall first decide the condonation of delay

application after hearing both the parties without there being

influenced by the observations made herein before, and only thereafter

decide application under Order IX Rule 13 CPC.