Ghulam Nabi Malik & Orss vs Abdul Rashid Malik & Anr
2024 Latest Caselaw 132 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Ghulam Nabi Malik & Orss vs Abdul Rashid Malik & Anr on 23 February, 2024

Author: Rahul Bharti

Bench: Rahul Bharti

                                                             S.No. 116
                                                             Supp. List
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                                 CM(M) No. 55/2024
                                 CM No. 819/2024
                                 CM No. 820/2024

Ghulam Nabi Malik & Orss.                            ...Petitioner/Appellant(s)
                            Through: Mr. Sheikh Hilal, Advocate


                                 V/s

Abdul Rashid Malik & Anr.                                  ...Respondent(s)
                            Through: Mr. Nadeem Gul, Advocate (Caveator)

CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE.

                                 ORDER

23.02.2024

Caveat stands discharged.

Aggrieved of an ex parte judgment & decree dated 18.08.2020 passed

by the court of learned Munsiff, Budgam, the petitioners instead of

preferring a civil first appeal under section 96 read with Order 41 of Code of

Civil Procedure chose to file an application under Order 9 Rule 13 of the

Code of Civil Procedure, for seeking setting aside of the ex parte judgment

& decree.

The said application of the petitioners/defendants came to be rejected

by an order dated 21.06.2022 by learned Musniff, Budgam against which

the petitioners/defendants preferred a civil miscellaneous appeal under

Order 43 Rule 1 of the Code of Civil Procedure before the Court of learned

Additional District Judge (Fast Track Court) Budgam. The petitioners' said

civil miscellaneous appeal came to be rejected vide an order dated

03.06.2023.

Under a self entertained impression that a civil second appeal is

maintainable against the order dated 03.06.2023 of the appellate court of

District Judge, Budgam, the petitioners' come forward with institution of a

regular 2nd appeal No. 10 of 2023 which came to be filed beyond 90 days

period of limitation provided for civil 2nd appeal under the Limitation Act.

The said civil 2nd appeal came to be dismissed by this Court in terms

of its order dated 14.02.2024 that no appeal is provided under the Code of

Civil Procedure, J&K against an appellate order passed under Order 43

Rule 1.

It is now in the second round that the petitioners/defendants are

coming forward with present petition filed under article 227 of the

Constitution of India to get rid of the order dated 03.06.2023 of the Court of learned Additional District Judge, Budgam along with the ex parte

judgment and decree dated 18.08.2022.

Notice.

Respondents are on caveat, as such accepts notice.

Notice accepted by Mr. Nadeem Gul, learned Advocate on behalf of

respondents 1 & 2.

Notice in CMs also.

Send for the records from the Court of learned Additional District

Judge, Budgam and court of learned Munsiff, Budgam.

List on 22nd April 2024.

(RAHUL BHARTI) JUDGE SRINAGAR 23.02.2024 "S.Nuzhat"