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2009 DIGILAW 697 (JK)

Mangat Singh v. Diwakar Singh

2009-12-31

J.P.SINGH

body2009
1. Civil Second Appeal No.19/1999, preferred against Decree dated 27.02.1999 of the First Additional District Judge, Jammu, in Civil Ist Appeal no.14/1997, dismissing respondent-plaintiffs Suit and reversing the Decree passed by the trial Court of Sub-Judge, Jammu, directing the petitioner to vacate and handover the vacant possession of an Orchard measuring 33 kanals, situated at Kote Garhi, to the respondent, was allowed by this Court, in ex-parte, on November 25, 2004, setting aside the First Additional District Judge, Jammus Judgment and Decree and restoring that of the Sub-ordinate Judge, in Suit No. 77 of 1979. 2. Invoking the provisions of Order 41 Rule 21 C.P.C, the petitioner has filed a petition for re-hearing of the Appeal along with Miscellaneous Petition No. 198/2005, seeking condonation of 331 days delay in filing the Petition. 3. Condonation of Delay has been sought by the petitioner, on the ground that the petitioners counsel could not appear in the Court to defend the Appeal, as his Clerk had not noticed the case in the Weekly Cause List. Whenever contacted, his Counsel would inform him that the Appeal was still pending; And it was in these circumstances that neither he nor his counsel could know about the listing of the Appeal in the Weekly Cause List and the pronouncement of judgment thereon. 4. The respondent opposes the petitioners prayer for Condonation of Delay and re-hearing of the Civil Second Appeal, on the ground that the petitioners request was not bonafide, as his continued appearance before the Executing Court, after the judgment, demonstrates that despite having knowledge of the decision in the Civil Second Appeal, he had not taken any steps to seek re-hearing of the Appeal within the prescribed time; the delay in filing the Petition may not thus warrant condonation additionally because it would not be in the interests of Justice to deprive the respondent of the fruits of the litigation which he had initiated more than thirty years ago. 5. The petitioner has placed on records, the Affidavit of Mr. K.S.Chib, Advocate, to support the plea set up in the Miscellaneous Petition. 6. According to the petitioners Advocates Affidavit, he could not appear for the petitioner, in the Civil Second Appeal, due to the bonafide mistake of his Office Clerk, in omitting to notice the listing of the Civil Second Appeal in the Cause List. K.S.Chib, Advocate, to support the plea set up in the Miscellaneous Petition. 6. According to the petitioners Advocates Affidavit, he could not appear for the petitioner, in the Civil Second Appeal, due to the bonafide mistake of his Office Clerk, in omitting to notice the listing of the Civil Second Appeal in the Cause List. He came to know about the pronouncement of the judgment in the Appeal only when the petitioner told him that the case was pending before the Sub-ordinate Judge in Execution proceedings. He had advised the petitioner to appeal against the judgment of the High Court to the Honble Supreme Court, but expressing his inability to do so for financial constraints, the petitioner continued consulting other Advocates in search of other available remedy. 7. Referring to the State of Karnataka v. Y. Moideen Kunhi & Ors., reported as 2009 AIR SCW, 4491, Sh. D.R.Khajuria, appearing for the petitioner submits that the delay in filing the Petition for re-hearing of the Appeal, requires to be condoned for advancing the cause of Justice, allowing opportunity to the petitioner to contest the respondents Appeal on merits. According to the learned counsel, when considered on merits, the judgment delivered in the Civil Second Appeal was likely to be reversed as the respondents plea that the Civil Courts had no jurisdiction in the matter was likely to succeed. 8. Respondents learned counsel, on the other hand, submitted that after the admission of the Appeal to hearing, the appellant had been avoiding hearing in the Appeal and it was for this reason that he would always abstain when the Appeal was taken up for hearing. Dubbing the petitioners request for re-hearing of the Appeal, as dishonest, learned Counsel, contested the petitioners pleas projected to seek Condonation of delay, as incorrect, submitting that the petitioner had moved the application with bad intention of depriving the respondent of the fruits of litigation which was initiated by him more than thirty years ago. 9. I have considered the submissions of learned counsel for the parties and perused the records including the minutes of the Civil Second Appeal and the Execution proceedings. 10. Before dealing with the contentions raised at the Bar, few facts need to be noticed. 11. 9. I have considered the submissions of learned counsel for the parties and perused the records including the minutes of the Civil Second Appeal and the Execution proceedings. 10. Before dealing with the contentions raised at the Bar, few facts need to be noticed. 11. A Suit for mandatory injunction directing the petitioner to vacate the Orchard measuring 33 kanals situated at Kote Garhi and handover the vacant possession thereof to the respondent, filed on August 09, 1979 was decreed on December 04, 1997. The Decree was, however, set aside by the First Appellate Court on February 27, 1999. 12. Respondents Civil Second Appeal No. 19/99 against the decree of the First Appellate Court, was admitted to hearing by this Court on July 10, 2002. 13. The Appeal was thereafter listed for consideration on April 22, 2003, January 30, 2004, March 11, 2004 & October 06, 2004. On all these dates of hearings, neither the petitioner nor his counsel appeared to defend the Appeal. 14. None had appeared on behalf of the petitioner on November 09, 2004 and October 10, 2004 when the Civil Second Appeal had been taken up for hearing and reserved for judgment. 15. The records of the Execution proceedings before the learned Sub-Judge reveal that the petitioner had appeared first before the Executing Court on August 08, 2005 through his Advocate seeking time for filing objections to the Execution Application. On the adjourned date of September 29, 2005, the petitioner appeared through another Advocate, Mr. D.R.Khajuria, who sought time to produce Vakalatnama on behalf of the judgment-debtor. It was on October 25, 2005 that Mr. Khajuria filed his Vakalatnama on behalf of the judgment-debtor seeking time for filing objections to the Execution application. The case was thereafter adjourned four times, but no Objections to the Execution Application were filed by the petitioner. The petitioner thereafter filed this Petition on December 16, 2005. 16. The present CONDL (C) No. 198/2005 has thus arisen in the facts aforementioned. DISCUSSION :- 17. The petitioners Advocates Affidavit filed in support of the petitioners Miscellaneous Petition does not indicate that the petitioner had been approaching his Advocate to know about the progress of his Case and all that it indicates is that the Learned Advocate could not appear in the case because his Clerk had not noticed the petitioners case in the Weekly Cause List. Petitioner has not filed the Affidavit of the Advocates Clerk who is stated to have not noticed the petitioners case in the Cause List. 18. The continued presence of the petitioner before the Executing Court from August, 2005 through his two Advocates, until the filing of this Miscellaneous Petition, indicates that he was aware about the delivery of judgment in the Civil Second Appeal. His plea that being an illiterate Villager and Agriculturist, he could not understand the nature of the proceedings before the Executing Court and was under the impression that the case had to be decided afresh by the learned Sub-Judge, appears to be an after-thought, coined only to seek condonation of delay in moving the Court to seek hearing in the respondents Civil Second Appeal. The Vakalatnama filed by the petitioner before the Executing Court specifically indicates him to be the judgment-debtor who had engaged the Advocate to contest the respondents Execution Proceedings, and in this view of the matter, it cannot be said that the petitioner had no knowledge of the contents of the judgment delivered in the Civil Second Appeal. I am supported in taking this view by the petitioners Advocates Affidavit where he is stated to have advised the petitioner to appeal against the judgment in the Appeal to Honble Supreme Court of India and this could be possible only if the petitioner had known about the contents of the judgment in the Appeal. 19. In the circumstances, it is difficult to believe the petitioners Cock and Bull story that his Advocates clerk had not noticed his case in the Cause List thereby disabling his Advocate to appear in the case. 20. The conduct of the petitioner, in the proceedings in the Civil Second Appeal, indicates that he had opted not to appear in the case either himself or through his Advocate and his intentional absence in the case, appears to have left the Court with no other option but to hear the case in ex-parte. 21. Even otherwise, the detailed judgment delivered by the Lord Chief Justice, after discussing the evidence led by the parties, the opinion of the two Courts on the subject and the law on the point, may not warrant re-hearing of the case which concludes the litigation between the parties which was initiated thirty years ago. 22. 21. Even otherwise, the detailed judgment delivered by the Lord Chief Justice, after discussing the evidence led by the parties, the opinion of the two Courts on the subject and the law on the point, may not warrant re-hearing of the case which concludes the litigation between the parties which was initiated thirty years ago. 22. I do not find any substance in the petitioners counsels plea that the judgment delivered by Lord Chief Justice was likely to be reversed as the Civil Courts had no jurisdiction in the matter, in that, ouster of jurisdiction of Civil Courts to decide the dispute between the parties, is not contemplated by the provisions of the Jammu and Kashmir Agrarian Reforms Act, to which the petitioners learned counsel refers. 23. State of Karnataka v. Y. Moideen Kunhi & Ors., referred to by the petitioners learned counsel, is not applicable to the facts and circumstances of the present case, in that, liberal approach had been suggested in the case in view of the peculiar facts and circumstances of the case where the Government Machinery had failed to act with promptitude to protect the interest of the State. 24. The facts and circumstances of the present case do not justify liberal approach in the case as the case set up by the petitioner for condonation of delay has not been found to be bonafide, in that, the grounds projected to seek Condonation of delay have been coined by the petitioner to avoid having resort to the available remedy of Appeal against the judgment in the Civil Second Appeal, to the Honble Supreme Court of India. 25. That apart, the facts and circumstances of the case may not justify condonation of delay in the case permitting the petitioner to re-open consideration of the Civil Second Appeal afresh which after remaining pending in this Court for five years, had concluded more than thirty years old litigation between the parties. 26. For all what has been said above, I am of the view that the petitioner has failed to satisfy that he had been prevented by any sufficient cause for not filing Petition under Order 41 Rule 21 of the Code of Civil Procedure for re-hearing of Civil Second Appeal No. 19/1999, decided in ex-parte, within the time allowed by law. 27. Condonation (c) No. 198/2005 is, accordingly, dismissed along with CMP No. 34/2005. Records be sent back.