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2002 DIGILAW 136 (JK)

Gh. Rasool Magray v. Haji Gh. Hassan

2002-05-03

B.L.BHAT

body2002
Per Honhle Mr. Justice B.L. Bhat (Oral): 1. This appeal is directed against the order dated: 24-08-2000, recorded by the learned District Judge, Srinagar, in civil file titled as Ghulam Rasool Magrey Vs. Gh. Hassan Arm and others. It stems out of those circumstance which are summarised as:- 2. A civil original suit instituted by the appellant plaintiff against the respondents pending decision before the learned District Judge, Srinagar, came to be dismissed on 23-12-1989. On the same day an application before the trial court came to be filed for its restoration. This petition for restoration of the civil original suit also came to be dismissed on 18-08-1990 in default for the appearance of the appellant/plaintiff. On 26-06-1991, another application for restoration of the said application for restoration of the civil original suit came to be filed by the appellant/plaintiff, in this behalf an application for condonation of delay came to be filed by him on 22-05-1992 i.e. well after about ten months and twenty six days of the presentation of the second application for the restoration of the suit application. The respondents came to resist the said petition by filing their objections. In support of his petition for condonation of delay, the appellant/applicants came to lead its evidence. The respondents did not lead any evidence in rebuttal. The trial court on conclusion of the proceedings and on appreciation of the appellants evidence by virtue of the impugned order came to reject the said application for condonation of delay and in consequences there of came to dismiss the application of restoration for ihe restoration of the suit as time barred. 3. The stand of Mr. Lone, the learned counsel for the appellant is that no period of limitation is provided under Schedule I of the Jammu and Kashmir Limitation Act (hereinafter referred to as the Act) for an application for restoration of the suit, therefore, the case in hand falls under Article 181 of the Act which prescribes limitation of three years time period from the date when the right to appeal accrues. In this behalf he has relied on SLJ 1979 page 6. In this behalf he has relied on SLJ 1979 page 6. His further contention is that as a matter of abandon cautious, the appellant has filed an application in hand for condonation of delay in presenting the said application for the restoration of the suit application in which the appellant has led his evidence, but the trial court without appreciating this evidence of the appellant in its right perspective has erroneously rejected this application. 4. On the other hand the contention of the learned counsel for the respondents is that it is Article 163 of the Act which is applicable to the application seeking an order to set aside the dismissal for default of the appearance of the restoration of the suit application and this Article prescribes 30 days period of limitation in presenting the application for setting aside the order of dismissal in default of appearance. His further contention is that the trial court has rightly rejected the application for condonation of delay for presenting the application for restoration of the application of the suit. 5. Considered the rival contentions of the learned counsels for the parties, I have also gone through the record of the case. Article 163 of Schedule I appended to the Act prescribes 30 days time period for application seeking setting aside the order of dismissal for default of appearance or for failure to pay costs of services of process or to furnish security from the date of the process of said dismissal. The only meaning which can be given to the words "by the plaintiff for an order to set aside dismissal for default of appearance" employed in this Article include both the application for setting aside the order of dismissal of suit for default of appearance and application seeking setting aside of the dismissal order of such application dismissed for default of appearance. Giving any other meaning to these words will amount to causing violence to this Article, because ordinary prudence indicates that when the original application for the restoration of the suit dismissed in default for appearance is required to be filed under this Article within 30 days, how can an application for the restoration of such an application for the restoration of the suit be permitted to be filed beyond the period of 30 days. (See AIR 1990 J&Kpage 79). 6. (See AIR 1990 J&Kpage 79). 6. Viewed thus, the application filed by the appellant for the restoration of the application for restoration of the suit application is governed by Article 163 of the Act. SLJ 1997 page 6 relied by the learned counsel for the appellant is distinguishable and is not applicable to the facts of this case. 7. This takes me to consider as to whether the appellant was prevented by a sufficient cause to present an application for restoration of the suit application within thirty days prescribed period of limitation under Article 163 of the Act. As indicated, the application of restoration of suit came to be dismissed in default of the appearance on 18-08-1990, appellant came to file the application of restoration for the restoration of suit on 26-09-1991, which under Article 163 was required to be filed within 30 days after its dismissal but came to be filed on 18-09-1999. Thus there is one years delay in presenting this application. In this behalf the appellant came to file an application in terms of Section 5 of the Limitation Act on 22-05-1992 i.e. well after more than eight months. In the bid to substantiate this application for condonation of delay in presenting the application for restoration of the suit application, the appellant has claimed that due to prevailing situation in Batamaloo area where there used to be always crack-down etc, he could not present the said application within time, moreover the same got misplaced due to firing at Lal Chowk. In support of his claim he besides himself has examined Abdul Hamid, Syed Javid, Imtiyaz Ahmad and Arshad Ahmad. As indicated that the trial court on consideration of the evidence led by the appellant came to dismiss this application for condonation of delay. This court being the 1st. Appellate Court is constrained to make reappraisal of this entire evidence led by the appellant before the trial court and also in the light of the criticism levelled by the learned counsel for the appellant to the conclusion arrived at by the trial court. The appellant while supporting his claim has deposed that in the year 1989 restoration application came to be presented on his behalf which came to be dismissed during the same year. Later on the conditions in Kashmir remained turbulent upto year 1992. He belongs to the area which always used to remain under cross firing. The appellant while supporting his claim has deposed that in the year 1989 restoration application came to be presented on his behalf which came to be dismissed during the same year. Later on the conditions in Kashmir remained turbulent upto year 1992. He belongs to the area which always used to remain under cross firing. He has clarified his evidence by deposing that his suit was dismissed on 23-12-1989 in default of his appearance, he came to file application for its restoration on 18-08-1990. Later on 26-06-1991 he filed another application for restoration and this is on 22-05-1992 he has filed application for the condonation of delay. He did not absent from the proceedings deliberately but the circumstances were beyond his control. PW Abdul Hamid has deposed that the applicants/appellants is his neighbour, the parties had a litigation pending before the court he (witness) was also facing litigation before the court of Municipal Magistrate, as a result of which both he and the applicant (appellant) used to pursue their cases before the courts together however, from the year 1990 to 1992, he said litigation could not be pursued because of disturbed conditions. Conditions at Batamaloo were more worse. He does not know in which year the case of the applicant/appellant was dismissed. To the close of his evidence he has deposed that it is incorrect to say that during the year 1990 there used to be crackdown daily at Batamaloo. PW Syed Javid has deposed that in the summer months of the year 1990 the applicant/appellant could not attend his case before the court because of crackdown and the strike. PW Imtiyaz Ahmad, who deposed that he knows the applicant/appellant who had a case before the court and the same came to be dismissed in default of his appearance. The fact is that the place where the applicant resides used to be daily victim of crackdown. During this year all the employees of the State were on strike as a result of which the applicant/appellant could not present his restoration application. To the same effect is evidence of Pw Arshad Ahmad. 8. Considered the afore evidence of the appellant and his witnesses adduced by him before the trial court. This evidence is sketchy does not inspire confidence. To the same effect is evidence of Pw Arshad Ahmad. 8. Considered the afore evidence of the appellant and his witnesses adduced by him before the trial court. This evidence is sketchy does not inspire confidence. The appellant and his said witnesses have tried to show that the working of subordinate courts in Srinagar remained paralysed because of turbulent conditions in the Srinagar from the year 1990 upto 1992, which is a big lie. The interim orders recorded in the trial court file from time to time and the proceedings conducted thereto in the applications filed by the appellant do not support this version of the appellant and his witnesses. No documentary evidence is produced by the appellant before the trial court that Batamaloo area where the appellant resides in the city of Srinagar remained constantly under the shadow of crackdown and cross firing for the years 1990 to 1992. I find myself in agreement with the observations of the learned trial court recorded in the impugned order that if the courts were closed right from the dismissal of the application for restoration on 18-08-1990 for the entire period of two years then how the application for its restoration came to be filed on 26-06-1991." This being so, the trial court has rightly rejected the evidence of the appellant and of his witnesses to the effect that the appellant had a sufficient cause for not preferring the application for its restoration of the suit application within the period of limitation of 30 days as prescribed under Article 163 of the Act. Viewed thus, there is no infirmity or an error of law or jurisdiction in the order impugned in this appeal. Therefore, the appeal in hand is dismissed and the impugned order is confirmed. Let the record of the trial court together with the copy of this order be returned to the court below.