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2017 DIGILAW 596 (JK)

Rajesh Kumar v. State

2017-08-09

B.S.WALIA

body2017
1. On appearance of Mr. Daljeet Singh Manhas, learned counsel for respondent No.5, who is on caveat, Caveat No.2530/2017 stands discharged. 2. Mutation was attested in favour of respondent No.5 on 27.02.1999. The same was challenged by the petitioner on the ground that his father was the owner of the land in question and that the mutation had been made in favour of respondent No.5 without any notice to the petitioner as his father had died in the year 1995. 3. Petitioner filed a suit for permanent prohibitory injunction restraining respondent No.5 from interfering with the land in question on the ground that the land in question was the ownership of his father and stood recorded as such in the revenue record. Initially, interim orders were passed in favour of the petitioner in the civil suit. However, on written statement being filed by respondent No.5 in the civil suit, the interim orders were vacated on 19.01.2016. In other words, written statement taking up the stand that the mutation of the land in question was recorded in favour of respondent No.5 by the competent authority was filed prior to 19.01.2016. It is thereafter that the petitioner filed an appeal before the Additional Deputy Commissioner exercising the powers of Commissioner, Agrarian Reforms, Jammu challenging the mutation along with an application for condonation of 17 years of delay in late filing of the appeal . 4. Case was listed on a number of dates but for reasons best known to the petitioner, counsel for the petitioner did not put in appearance on four dates i.e, 27.07.2017, 17.08.2016, 07.09.2016 & 28.09.2016 whereupon the appeal was dismissed in default on 28.09.2016 on the ground that the appeal was merely to harass respondent No.5. 5. An application is claimed to have been filed for restoration of appeal dismissed on account of absence of counsel for the appellant on the ground that the counsel could not remain present on 28.09.2016 on account of Sharadh. However, the same was dismissed vide order dated 17.10.2016 on the ground that the counsel for the appellant was absent not only on 28.09.2016 but on four consecutive dates and no sufficient and cogent reason had been made out for his absence. 6. However, the same was dismissed vide order dated 17.10.2016 on the ground that the counsel for the appellant was absent not only on 28.09.2016 but on four consecutive dates and no sufficient and cogent reason had been made out for his absence. 6. A revision was filed against the order dated 17.10.2016 before the Jammu and Kashmir Special Tribunal, Jammu, which too, dismissed the revision petition on the ground that instead of explaining absence on four dates, the only explanation given was that on 28.09.2016, counsel could not be present due to Sharadh whereas on two dates of remaining three dates, the learned Presiding Officer was stated to be on leave. The learned Tribunal took into account that even in the revision filed before the Tribunal on 10.01.2017, six hearing had taken place out of which the counsel for the petitioner was present only on one date i.e. 30.01.2016 and on the other five dates, he had absented. Taking into account the non-serious attitude and approach of the petitioner/applicant, revision petition was dismissed. 7. Learned counsel for the respondent has reiterated reasoning giving in the orders passed by the learned Additional Deputy Commissioner, Jammu as well as the learned Tribunal. Admittedly, the petitioner was absent on four dates. Two out of the dates on which the petitioner’s counsel remained absent before the learned Additional Deputy Commissioner, Jammu were dates on which the learned Presiding Officer was admittedly not holding Court. 8. No explanation has been given for one date. At least none has been brought to my notice by either learned counsel for the parties and neither is the application seeking restoration of the appeal dismissed in default on record nor the same has been produced despite query. However, counsel had cited occasion of Sharadh as a reason for non-appearance on 28.09.2016. The fact remains that either alternative arrangement ought to have been made or an advance request for adjournment ought to have been circulated, in the eventuality of counsel for the petitioner being unavailable for addressing arguments before the learned Additional Deputy Commissioner on 28.09.2016. For that matter even the petitioner could have been deputed to make a request for short adjournment but the same was not done. The same does not denote exercise of due care and diligence. For that matter even the petitioner could have been deputed to make a request for short adjournment but the same was not done. The same does not denote exercise of due care and diligence. Although it is a fit case for not intervening in the matter, yet in the interest of justice, order dated 17.10.2016 and order dated 31.07.2017 dismissing the application for restoration of appeal are set aside subject to payment of Rs.10,000/- as costs. 9. Since the matter was pending before the Additional Deputy Commissioner, Jammu at the stage of consideration of the application for condonation of 17 years delay in late filing of the appeal, the matter is remanded to the learned Additional Deputy Commissioner, Jammu to consider and decide the application for condonation of 17 years delay in late filing of the appeal. 10. Needless to mention, nothing said in this order shall be deemed to be an expression of merits and the learned Additional Deputy Commissioner, Jammu shall decide the application for condonation uninfluenced by the observations made hereinabove. 11. With the aforementioned directions, writ petition is allowed. Payment of costs amounting to Rs.10,000/- to respondent No.5 shall be a pre-condition to the learned Additional Deputy Commissioner, Jammu taking out proceedings for considering the application for condonation of delay in late filing of the appeal. Writ petition disposed of in aforementioned terms.