Jammu & Kashmir High Court - Srinagar Bench
Abdul Lateef Shah vs Showkat Hussain Shah And Others on 25 November, 2021
1
After Notice
Serial No. 26
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RSA No. 16/2021
CM No. 7698/2021
Abdul Lateef Shah
Petitioner(s)/ Appellant(s)
Through: -
Mr G. A. Lone, Advocate.
V/s
Showkat Hussain Shah and Others
.....Respondent(s)
Through: -
Mr. Altaf Mehraj, Advocate with
Mr Zaid Mehraj, Advocate.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
ORDER
25.11.2021.
1. In the instant Civil 2nd appeal, the appellant assails order dated
18.09.2021 passed by the court of Additional District Judge,
Budgam, and judgement and decree dated 22.05.2017 passed by
the court of Munsiff, Budgam, inter-alia on the grounds that
proceedings conducted by the trial court in the suit reveal gross
illegalities committed, while proceeding ex-parte against the
defendant/appellant herein, so much so, notice issued by the trial
court to the defendant/appellant herein upon institution of the suit
did not indicate the nature of proceedings in which the notice had
been issued. The said notice issued by the trial court is stated to
have been imaginary having been issued in violation of the
provisions of Order V CPC.
2. It is being stated that the trial court wrongly dismissed the
application filed by the defendant/appellant herein for setting aside
the ex-parte judgement and decree dated 22.05.2017 and that the
appellate court landed in grave error in upholding the ex-parte
proceedings initiated by the trial court and passing of the ex-parte
judgement and decree dated 22.05.2017.
3. It is being further stated that both courts below have erroneously
and illegally exercised jurisdiction while holding that the
application filed by the defendant/appellant herein for setting aside
ex-parte decree and judgment dated 22.05.2017 is barred by time.
4. Heard learned counsel for the parties and perused the record.
5. Learned counsel for the appellant while making his submissions
reiterated contentions raised and grounds urged in the memo of
appeal and prayed for framing of questions being substantial
questions of law suggested at Para 10 in the memo of appeal. Per
contra, counsel for the caveator/respondent would controvert and
resist the contentions raised by the counsel for the appellant and
would contend that appeal is not maintainable, so much so, no
substantial question of law is involved in the appeal.
6. Having regard to the nature of controversy involved in the case and
the respective submissions made by learned counsel for the parties
as also upon consideration of the matter, following substantial
questions of law emerges for consideration in the appeal.
i) "Whether the trial court has failed to follow the mandate
of Order V CPC while undertaking proceedings in the
suit, filed by the respondents and in the process wrongly
proceeded ex-parte against defendant/appellant herein
and consequently passed impugned ex-parte judgement
and decree dated 22.05.2017 which, as such, is void and
nullity.
ii) Whether both the courts below failed to appreciate the
application filed by the defendant/appellant herein under
Order 9 Rule 13 CPC for setting aside ex-parte
judgement and decree dated 22.05.2017 in the right and
correct perspective overlooking and ignoring the material
and evidence available on file resulting into passing of
impugned order dated 18.09.2021."
Notice.
Notice waived by Mr Altaf Mehraj, Advocate, on behalf of
caveator/respondent No. 1. Caveat stands discharged.
Registry to send for the records of the trial court as well as
appellate court.
List on 08.02.2022.
CM No. 7698/2021
Notice as above. Notice waived by Mr Altaf Mehraj, Advocate,
on behalf of caveator/respondent No. 1.
In the meanwhile, subject to objections and till next date of
hearing, operation of the impunged judgement and decree dated
22.05.2017 and order dated 18.09.2021, passed by the court of
Munsiff, Budgam, and Additional District Judge, Budgam,
respectively, shall stay.
(Javed Iqbal Wani)
Judge
Srinagar
25.11.2021
"Ishaq"
Whether the order is speaking: Yes/ No.
Whether the order is reportable: Yes/No
