JUDGMENT :

RASHID ALI DAR, J.

1. An ex-parte judgment and decree had been called in question by the respondents, which had followed against them in a suit filed by the present petitioner, in the Court of Sub-Judge, Jammu. The suit has been instituted on 29.05.2009 and decided on 30.05.2015. The respondents filed an application for setting aside the said judgment and decree along with an application for condoning the delay in filing the same. The said application has been allowed by the learned Sub-Judge, Jammu by passing an order on 26.02.2019. Learned Sub-Judge has noted the facts including the factum of filing of suit, passing of ex-parte judgment and decree on 30.05.2015 and thereafter the commencement of the execution proceedings at the instance of the Plaintiff, wherein other side has caused appearance.

2. Learned Judge has referred to the averments of the application presented before him for condoning the delay. The respondents herein had pleaded therein that they had engaged a counsel to defend the case, who had advised them that their presence was not required and so they did not appear before the said Court. The plea had also been taken as noted in the impugned order that the learned counsel did not advise them even to challenge the ex-parte judgment and decree and so the same has resulted in laying the motion with delay.

3. The objection of other side (the present petitioner) has also been noted in the impugned order wherein it is stated that the pleas taken for condoning the delay are without any merit and so the application was required to be dismissed.

4. The observation has been made by the learned Judge that the respondents should not suffer for wrong advice tendered by earlier counsel. As according to him, it was the wrong advice of the counsel, which was the reason for filing the application beyond time. After framing the opinion that delay was required to be condoned, the learned Judge has also set aside the ex-parte judgment and decree as the learned Judge was of the opinion that the same needs 'sympathetic consideration'.

5. The petitioner has submitted that the supervisory jurisdiction of this Court was required to be invoked in the instant case under Section 104 of the Constitution of Jammu and Kashmir and the order was patently perverse, based on no evidence and no reasonable person could have come to the conclusion that it was a sufficient cause not prosecuting the defence in the matter. Reference of the names of the counsel appearing for the respondents has also been given, who had been assigned the job of prosecuting the defence on behalf of the respondents herein and who according to the petitioner had not been aware as to what was attributed to them by the respondents herein. The dates on which the respondents have caused appearance in the contempt petition and other proceedings is also given in the petition. S/Shri Anil Bagotra, Sushashi Vasisatha and Nikhil Choudhary, Advocates had been appearing in succession in the case while substituting each other on behalf of the respondents. It was highly improper according to the petitioner herein, to treat the assertion made by the respondents in the application/applications as a gospel truth and without giving a thought to its varsity. Learned Sub-Judge is also stated to have observed in breach the settled principles of "ignorantia-juris-non-excusat" without putting the respondent to proof of the averments made regarding improper advice and inaction of all the counsels engaged by them.

6. The matter was heard at the very threshold as other side has been on caveat and the parties accordingly prayed that the petition be disposed of finally on hearing them and after considering the material on record.

7. Learned counsel for the petitioner has reiterated the grounds taken in the petition and submitted that ground is made out for exercise of jurisdiction. He has placed reliance on a judgment passed by the Allahabad High Court in Harbir Singh Malik v. Additional Distri