The main legal point established is that technicalities should not override substantial justice, and a person affected by an order, even if not a party to the suit, can file an appeal with the court's permission.

JUDGMENT :

Wasim Sadiq Nargar, J.

1. The petitioner through the medium of the instant petition has called in question the order passed by learned Principal Sessions Judge, Jammu (for short “appellate court”) dated 30.03.2024 by invoking the powers of this court under Article 227 of the Constitution of India; with the further prayer that the order passed by learned Sub Judge (Chief Judicial Magistrate) Jammu dated 02.01.2024 be restored.

FACTUAL MATRIX:

2. Briefly stating the facts in the instant petition are that a civil miscellaneous appeal came to be preferred against the order dated 02.01.2024 passed by learned Sub Judge (CJM), Jammu, whereby and where-under, the status quo has been directed to be maintained with respect to the service status of the petitioner herein (respondent No.1 therein) with the prayer for setting aside the same. The leave application arises out of a civil miscellaneous appeal which has been filed by the respondent no.5 herein against the order dated 02.01.2024 passed by the learned Sub Judge, Jammu, whereby the said court has proceeded to pass orders of status quo as regards functioning of the plaintiff (petitioner herein) as Managing Director of Jammu Tehsil, Cooperative Marketing Society Ltd. Government undertaking who had since completed his service tenure on 15.07.2020 in terms of the Resolution dated 16.07.2020.

3. A suit came to be preferred by the plaintiff (petitioner herein) before the court of learned CJM, Jammu on 14.12.2023 restraining the defendants from terminating the services of the plaintiff or interfering into the working of the plaintiff as Managing Director of Jammu Tehsil Cooperative Marketing Society Ltd on the strength of a resolution adopted on 16.07.2020. The plaintiff did not array the respondent no.5 as a party in the suit before the Trial Court and obtained exparte order, whereas, the fact remains that the respondent no.5 happens to be a proper and necessary party to the proceeding as directly affected by the order impugned dated 02.01.2024.

4. The petitioner herein filed a suit for permanent prohibitory injunction restraining defendants from terminating the services of the plaintiff or interfering into the working of the plaintiff claiming to be the Managing Director of Jammu Tehsil Cooperative Marketing Society Ltd in view of the resolution adopted in general body meeting.

5. The Trial Court vide order dated 02.01.2024 directed the parties to maintain status quo with respect to the service status of the plaintiff till next date of hearing and feeling aggrieved of the aforesaid order, an appeal came to be preferred by the respondent no.5 before the appellate court.

6. The appellant (respondent no.5 herein) claimed to be Chairman of the Jammu Tehsil Cooperative Marketing Society Ltd was aggrieved of the order impugned and sought leave of the Court to file the appeal on the ground that the plaintiff had proceeded to file suit without arraying the appellant as a necessary party in the suit and obtained ex parte order which if allowed to sustain, the plaintiff would perpetuate his stay in the organization, when the fact remains that the same was not legally permissible on any count and thus, the appellant was directly affected by the said order dated 02.01.2024 and hence leave was sought to file an appeal.

7. The specific objection was taken before the appellate court by the petitioner that the appeal was time barred because the order which was impugned in the appeal was passed on 02.01.2024, whereas, appeal along with application for leave to appeal was filed on 23.02.2024, which was barred by limitation.

8. It was the specific case of the petitioner herein before the appellate court that unless and until the appeal is accompanied by separate application for condonation of delay, there can be no appeal, which, therefore was hit by Order 41 Rule-3A of Civil Procedure Code, which specifically provides for condonation of delay. In the aforesaid backdrop, it was specifically urg