Khurshid Ahmad Magrey vs Mohammad Aman Bhat
2022 Latest Caselaw 1708 j&K/2

                                                            S. No.
  IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                        Reserved on : 19.09.2022
                                        Pronounced on: 06.10.2022

                                        CM no. 4489/2021
                                        in RFA no. 18/2021

Khurshid Ahmad Magrey                                        ...Petitioner(s)

          Through: Mr. P. S. Ahmad, Advocate

        Vs.
Mohammad Aman Bhat                                          ...Respondent(s)

          Through: Mr. Mohammad Shafi Bhat, Advocate

CORAM: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                           O R D E R

06--10--2022

1. Appellant/petitioner (hereinafter referred as „defendant‟ before the trial court of Pr. District Judge Kulgam Srinagar) has preferred instant Civil 1st Appeal against the order dated 30.03.2021 passed in File no. IA-2/2020 (03/EM) r/w judgment and decree dated 06.09.2018 by the trial Court of Principal District Judge Kulgam in case titled "Mohammad Amin Bhat v. Khurshid Ahmad Magrey" bearing File no. 10/Numbri for setting aside the same.

2. Alongwith the appeal, appellant (defendant) has filed an application seeking condonation of delay in filing the aforesaid appeal. Condonation of delay application specifically contain averments, that the above titled appeal was initially filed on 28.05.2021, but due to some deficiency it was returned and after making deficiencies it was listed on 14.06.2021 before the Hon‟ble High Court, but due to some formal defects as pointed out by the Court vide its order dated 14.06.2021 appellant was permitted to withdraw the said appeal with liberty to file a fresh appeal; for assailing the impugned judgment and decree dated 06.09.2018 passed by the trial court of Principal District Judge Kulgam in the aforesaid case bearing File no. 10/Numbri, an application under Order XXXVII Rule 4 CPC r/w Order 9 Rule 13

CPC was preferred by the appellant (defendant) which was dismissed by Principal District Judge Kulgam vide its order dated 30.03.2021; appellant (applicant) is having sufficient cause to seek indulgence of this Court in regard to filing of the aforesaid application for condonation of delay as the order/judgment and decree passed by the trial court of Principal District Judge Kulgam is perverse and nullity; the time consumed by the appellant (applicant) in the process of filing the same is not deliberate and intentional but by invoking the jurisdiction of the trial court under Order XXXVII Rule 4 CPC r/w Order 9 Rule 13 CPC; there is no deliberate or intentional delay in preferring the instant appeal but due to some mysterious circumstances beyond the control of appellant. Condonation of delay application is supported by an affidavit.

3. Respondent (hereinafter referred as the „plaintiff‟ before the trial court) has opposed the condonation of delay application on the grounds, that the application is devoid of any merit as it does not disclose any cogent and sufficient cause for condoning the delay; there is a huge delay of three (3) years in filing the appeal; the delay has occasioned willfully on part of the applicant/appellant; the trial court has passed a decree against the appellant (defendant) in favour of respondent/plaintiff for recovery of Rs. 9.00 lacs where execution proceedings are pending and in order to delay the execution proceedings in decretal amount of Rs. 9.00 lacs alongwith interest appellant has preferred this appeal at a belated stage to avoid the execution of decree; the application being devoid of any merit deserves to be rejected and dismissed.

4. Heard and considered. The trial court of Principal District Judge Kulgam in a suit filed by respondent (plaintiff) against the appellant (defendant) granted an ex-parte decree on 06.09.2018 for an amount of Rs. 9.00 lacs alongwith costs. It is borne from the record that appellant (defendant) preferred an application under Order XXXVII Rule 4 r/w Order 9 Rule 13 CPC before the said trial court of Principal District Judge Kulgam for setting aside the ex-parte decree passed by the said court dated 06.09.2018. The court of Principal

District Judge Kulgam vide its order dated 30.03.2021 dismissed the application of appellant (defendant). Appellant (defendant) has assailed the original judgment and decree dated 06.09.2018 passed in ex-parte against him alongwith the order dated 30.03.2021. Article 116 of the Limitation Act 1963 (Central) mandates that the period of limitation for filing an appeal to the High Court from the date of decree or order is ninety (90) days. The trial court of Principal District Judge Kulgam vide it‟s order dated 30-03-2021 rejected the application of appellant (defendant) for setting aside ex-parte decree dated 06-09-2018, whereafter, the appellant/defendant preferred instant Civil 1st Appeal before the High Court on 26-06-2021 on 86th day which is within the period of limitation of 90 days. In a case law reported in 2010 (4) JKJ 620 (HC) titled Khair-ud-din and sons v. Union of India and others, the Division Bench of Hon‟ble J&K High Court while condoning delay of 737 days in preferring the Letters Patent Appeal and observing that the condonation of delay application should be construed liberally and decided on merits so as to advance cause of justice, in paragraphs 2, 6, 9 and 10 held as under:

"2. The word sufficient cause as employed in Section 5 of the Limitation Act has to be construed liberally so as to advance cause of justice. Liberal construction is controlled by one situation i.e. total slackness/indolence shall not be attributed to the seeker thereof. It is trite that when substantial justice and technical justice are pitted against each other, it is the former which has to prevail. It is also settled that the worst that can happen by condoning the delay is that the matter will get decided on its merits.

6. While considering the submissions as well as the position as stated hereinabove, there is no slackness attributable to the applicant (appellant) so as to disentitle him from claiming the condonation. The applicant (appellant) in fact has, with all diligence, pursued the review proceedings which have remained pending for more than one year, so that period has to be excluded from computation. In this connection reliance has been rightly placed on the judgment rendered by Hon'ble Apex Court in the case captioned R. B. Ramlingam v. R. B. Bhavaneshwari reported in 2009(1) Supreme 674.

9.The applicant (applicant) for the stated reasons seem to have acted with diligence. The period spent in prosecuting the review petition has to be excluded from computing the period

of limitation as permissible in terms of Section 12 of the Limitation Act. Excluding that period then remains a delay of approximately two months which is otherwise also explained as the applicant (appellant) being a old person had to collect the copies, take the legal advice and then to prepare the case, as such, delay is explained.

10.The application for the stated reasons is accepted. Delay is condoned. Let LPA be listed for admission in the next available cause list."

5. Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that it is trite law that the condonation of delay application should be construed liberally, substantial justice should prevail upon the technical justice and the subject matter of dispute between the parties should be decided on merits. Ratio of the judgment (Supra) squarely applies to the facts of the case in hand. As born out from record, application for setting aside ex-parte judgment and decree dated 06-09-2018 has been decided by the trial court of Principal District Judge Kulgam on 30-03-2021. Against the said order of dismissal dated 30-03-2021, appellant/defendant has preferred instant Civil 1st Appeal before this court on 26-06-2021 on 86th day which as per Article 116 of Limitation Act, 1963 (Central) is within the period of limitation of 90 days. The appellant (defendant) has shown sufficient cause for preferring the instant Civil 1st Appeal which is within the period of limitation and not time barred. Condonation of delay application bearing no. 4489/2021 is allowed and disposed of.

6. List the RFA no. 18/2021 for consideration on 27.10.2022.

(MOHAN LAL) JUDGE

JAMMU 06.10.2022 Vijay