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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Vinod Chatterji Koul, J.
Bashir Ahmad Dar – Petitioner
Versus
Shameema and others - Respondents
C2A no. 01 of 2014, CMP no. 67 of 2014
Decided On : 01-03-2023
Civil Second Appeal – Seeking condonation of delay – Court framed – Praying for grant of permanent injunction – Whether plaintiff has been married daughter and after death of her father she is in possession of suit land is enjoying usufruct out of it – Held, Observation and finding of First Appellate Court are erroneous as law provides that delay is to be explained for period beyond period of limitation prescribed – Limitation in this case would run from date of passing of decree and not from any date prior to passing of same – Applicant-petitioner, was required to explain that what occasioned after passing of decree, which is explained in application supported by an affidavit – First Appellate Court instead of limiting consideration to that period has gone beyond provisions and has taken into account the period of absence before Trial court – Ordered Accordingly.
JUDGMENT :
1. This Civil Second Appeal has been filed against the judgment dated 21.11.2013, passed by District Judge, Kulgam (for short “First Appellate Court”), dismissing the application seeking condonation of delay and as a consequence of which dismissing the appeal as well holding it as time barred.
2. Appellant therein had challenged the said decree on the grounds:
b) that the judgment has been passed in hot haste without application of mind and is in flagrant violation of the laws of land.
c) that the court although has framed the issues but has not recorded the findings on the issues as was required under law.
d) that the subordinate court has based his judgment on oral evidence without seeking the evidence of Patwari concerned regarding latest revenue record.
d). that the sale deed has not been challenged in the lis, as such, decree passed by the court is outcome of suppression of material facts by the other side.
3. The brief facts of the case are that plaintiff-respondent no.1 herein filed a civil suit titled as Shameema v. Salam Thokar and another before the court of Munsiff Damhal Hanji Pora, Kulgam (for short “Trial Court”) on 14.11.2005, praying for grant of permanent injunction against defendants, including present appellant – who had been defendant no.2 therein, restraining them from alienating land measuring 14 Kanals 05 Marlas falling under survey No.201 min situated at village Chugalpora District Kulgam, as the dispute between the parties is that the partition of the land has not been done between the co-owners and suit land being undivided between the parties. The defendants in their written statement have claimed that the land has been partitioned between the co-sharers and no portion of it is undivided and furthermore defendant no.1 has already transferred a portion of land to defendant no.2 before institution of suit and formal sale deed to that effect has been executed way back on 26.11.2008, as the sale deed stands registered by the Sub Registrar on 06.12.2008. The possession of land also stands delivered, and as a consequence of which the injunction suit is liable to be dismissed.
4. The Trial Court framed the following issues for consideration:
2. Whether plaintiff and defendant No. 1 are the co-owners and co-sharers of and suit land has not been partitioned between them. OPP
3. Whether suit land is in joint possession of plaintiff and defendants and has not been partitioned by revenue officers. OPP
4. Whether the defendant No. 1 has already transferred the same land to defendant No. 2 and defendant No. 2 is in possession of the suit land. OPD
5. Whether defendant No. 1 has offered to plaintiff to purchase the suit land and after her refusal defendant No. 1 has transferred the same to defendant No. 1. OPD
6. Whether plaintiff has no cause of action to file the suit. OPD
5. After framing of issues, parties were directed to lead evidence but defendants remained absent and their counsel did not appear on their behalf, so ex parte proceedings were initiated against the defendants on 17.10.2008, and plaintiff/respondent no.1 was directed to lead evidence in ex parte.
6. The Trial court while deciding the matter on 29.12.2012, observed that the suit land was in joint possession of plaintiff and defendant No.1 and was unpartitioned. All the witnesses are stated to have deposed that plaintiff had been married as Khana-Nisheen daughter and was in possession of her fathers’ inherited property and the suit land was in joint possession of plaintiff and defendant No.1 and defendant No.1 was bent upon to alienate the suit land to defendant No.2 – appellant herein, who was also causing interference in the suit land.
7. The suit was decreed in ex parte in
SupremeToday
Application seeking condonation of delay is to be decided while taking liberal view subject to explanation given by appellant more particularly when even there is not any inordinate delay.
Ignorance of a decree does not constitute sufficient cause for condoning a significant delay in filing an appeal, especially when the applicant had legal representation.
The court held that the appellants' explanation for the delay in filing the appeal was not satisfactory and that they were aware of the judgment and decree of the lower appellate court, as evidenced ....
The court affirmed that a party suppressing material facts cannot be granted equitable relief for condonation of delay in filing an appeal.
The main legal point established in the judgment is that the expiration of the period of limitation gives rise to a right in favor of the decree holder to treat the decree as binding between the part....
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