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2010 DIGILAW 183 (JK)

Tariq Abdullah v. Hajra Banoo

2010-04-07

J.P.SINGH

body2010
1. Appellant has filed this Appeal questioning Additional District Judge Dodas Order of June 27, 2009 dismissing his Application seeking restoration of the Application filed by him for setting aside ex-parte decree passed for recovery of Rs.83,875 on May 26, 2003. 2. As the Order impugned in the Appeal is not one of those indicated as appealable under Order-XLIII Rule-1 of the Code of Civil Procedure, Svt. 1977 (1920 A.D.), so this Appeal may not be maintainable. 3. Finding that the Order impugned was not appealable, petitioners learned counsel submitted that the Order impugned being illegal, appellants Appeal be treated as Revision against the impugned Order. Heard learned counsel for the parties. 4. I have considered the submissions of learned counsel for the parties and gone through the impugned Order to examine, as to whether or not, the Order impugned needs interference in Revision. 5. Learned Additional District Judge Doda has dismissed petitioners Application finding him extremely negligent in prosecuting it. 6. The facts of the case indicate that even though served in the suit, the petitioner had not responded to the summons, as a result whereof, ex-parte decree was passed against him on May 26, 2003. 7. On respondents taking out execution proceedings, petitioner was again summoned. This time too, despite service, he did not appear and accordingly, a Notice was issued to him as to why be he not sent to Civil prison. 8. The petitioner opted not to appear despite even this Notice. 9. He thereafter, filed Application for setting aside the ex-parte decree but did not prosecute it diligently and rather absented there from, resulting in its dismissal on October 07, 2005. 10. He thereafter moved a Restoration Application, which was allowed but even thereafter, he absented from the proceedings and his Application was again dismissed on August 07, 2007. 11. According to the information culled out from the records by the learned Additional District Judge, the petitioner never appeared interested in the prosecution of his Application for setting aside the ex-parte decree, in that, he had taken no steps to know about its fate for nearly two years. When it was dismissed on August 07, 2007 and he moved Application on April 22, 2009 i.e. after one year and eight months. 12. When it was dismissed on August 07, 2007 and he moved Application on April 22, 2009 i.e. after one year and eight months. 12. Although residing in the town itself, the petitioner does not appear to have bothered to contact his counsel to know about the fate of his Application. 13. After considering all these facts, the learned Additional District Judge, finding the petitioners application malafide, held the petitioner to have failed to prove sufficient cause which he had prevented him from causing his appearance in the Court to prosecute his Application on the day it came to be dismissed and even subsequent thereto, for about one year and eight months. 14. Learned Additional District Judge has dismissed the petitioners Application after appreciating the facts appearing from the records which proved the petitioner negligent in prosecuting his Application. 15. In the given circumstances, no other view on facts could have been taken than the one which the learned Additional District, Judge Doda had taken in the case. 16. No case for interference in Revision has been made out, in that, the Order impugned does not suffer from any illegality or irregularity. 17. For all what has been said above, this Appeal, treated as Revision, has no merit which is, accordingly, dismissed.