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2002 DIGILAW 118 (JK)

Superintendent Engineer v. Gh. Qadir Hazar

2002-04-29

SYED BASHIR-UD-DIN

body2002
1. Respondent No. 1 filed civil original suit for permanent injunction to restrain the defendant-Revision petitioner and other two respondents, from disturbing the possession of plaintiff of shop No. 9 at Nalla-Mar Road. Kadikadal, Srinagar. After the defendants foiled to appear, they were set ex-parte followed by judgment and decreeing of the suit on 16-12-1994 in ex-parte by City Munsiff, Srinagar. An appeal was preferred against this ex-parte judgement and decree, alongwith application for condonation of delay. The application for condonation of delay was dismissed on 31-05-1997. as foretiorari, leading to dismissal of the main appeal. This dismissal order is impugned in this revision petition. 2. Heard. 3. It is conceded by the counsel for the parties that against the impugned ex-parte judgment and decree dated: 16-12-1994 appeal with condonation of delay application was preferred on 05-09-1995. The delay was prayed to be condoned on the pleaded ground that the petitioner got the knowledge of ex-parte decree on 19-06-1995 and thereafter took necessary steps for obtaining certified copy which he got on 12-07-1995 and engaged counsel. The counsel filed the appeal with the application on 30-08-1997. 4. The appellate court of Additional District & Session Judge. Srinagar found that the application was barred by 201 days, this inordinate delay period is not satisfactorily explained. Respondents 2 and 3 participated in the suit proceedings, so much so, that even on 23-02-1994. they filed written statement but subsequently failed to appear. The trial court record also shows that the respondent No. 1 was also served through registered post and vide order dated: 30-06-1994 on record of the trial court file. he is deemed served. As defendants failed to appear they have been set ex-parte. The appellate court found that no plausible reasons are given for presenting the appeal beyond time and no satisfactory explanation is on record to show the necessity of filing of appeal 201 days beyond prescribed period of limitation. Despite being aware of and adopting the attitude of leniency, the appellate court could not find that sufficient cause, is made out to warrant extension of time on merits to file the appeal. 5. Despite being aware of and adopting the attitude of leniency, the appellate court could not find that sufficient cause, is made out to warrant extension of time on merits to file the appeal. 5. The arguments of the petitioners counsel that the petitioner/defendants could not contest the suit as no notice/summon was served on them and they got the knowledge of decree on 19-06-1995 when soon-after they directed their lawyer to pursue the available remedy, in the matter, is not born out by record. The record shows that the defendants had the knowledge and even two defendants filed their written statements while as 3rd defendant-appellant was served and presumptions of deemed service was validly drawn against him. He has not shown and even alleged that he was not served. No explanation or reasons are forth-coming on record to warrant condonation of delay, even if the court takes lenient view in the matter. The decree and judgment has been passed within jurisdiction and is not nonest (as alleged) in the eye of law. It is not a case of error or failure to exercise jurisdiction or acting illegally with material irregularity in exercise of jurisdiction. No failure of justice is even alleged. Merely because the court below has given a finding against the revision petitioner and dismissed the application with appeal, could not ipso-facto bring the case within the powers of the High Court for purposes of revisional jurisdiction. The court below has a right to decide the matter rightly or wrongly and that by itself is no ground to interfere in revision with the impugned order, when no error of jurisdiction or law is pointed out. The revision petition is misconceived and is dismissed. However, it is made clear that the respondent No. 1 and decree holder of suit No. 91/92 on the file of City Munsiff. Srinagar shall be bound to pay the rent/licence fee in respect of shop No. 9 at Nalla-Mar Road, Kadikadal, Srinagar to concerned in accordance with the applicable rules/executive fiat. Disposed of.