Mangat Singh vs Diwakar Singh

J.P. Singh, J.—Civil Second Appeal No. 19/1999, preferred against Decree dated 27.02.1999 of the First Additional District Judge,

Jammu, in Civil 1st Appeal No. 14/1997, dismissing respondent-plaintiff's Suit and reversing the Decree passed by the trial Court of Sub-Judge,

Jammu, directing the petitioner to vacate and handover the vacant possession of an Orchard measuring 33 kanals, situated at Kote Garhi, to the

respondent, was allowed by this Court, in ex-parte, on November 25, 2004, setting aside the First Additional District Judge, Jammu's Judgment

and Decree and restoring that of the Sub-ordinate Judge, in Suit No. 77 of 1979.

Invoking the provisions of Order 41 Rule 21 C.P.C, the petitioner has filed a petition for re-hearing of the Appeal along with Miscellaneous

Petition No. 198/2005, seeking condonation of 331 days' delay in filing the Petition.

Condonation of Delay has been sought by the petitioner, on the ground that the petitioner's counsel could not appear in the Court to defend the

Appeal, as his Clerk had not noticed the case in the Weekly Cause List. Whenever contacted, his Counsel would inform him that the Appeal was

still pending; And it was in these circumstances that neither he nor his counsel could know about the listing of the Appeal in the Weekly Cause List

and the pronouncement of judgment thereon.

The respondent opposes the petitioner's prayer for Condonation of Delay and rehearing of the Civil Second Appeal, on the ground that the

petitioner's request was not bonafide, as his continued appearance before the Executing Court, after the judgment, demonstrates that despite

having knowledge of the decision in the Civil Second Appeal, he had not taken any steps to seek re-hearing of the Appeal within the prescribed

time; the delay in filing the Petition may not thus warrant condonation additionally because it would not be in the interests of Justice to deprive the

respondent of the fruits of the litigation which he had initiated more than thirty years ago.

The petitioner has placed on records, the Affidavit of Mr. K.S. Chib, Advocate, to support the plea set up in the Miscellaneous Petition.

According to the petitioner's Advocate's Affidavit, he could not appear for the petitioner, in the Civil Second Appeal, due to the bonafide

mistake of his Office Clerk, in omitting to notice the listing of the Civil Second Appeal in the Cause List. He came to know about the

pronouncement of the judgment in the Appeal only when the petitioner told him that the case was pending before the Sub-ordinate Judge in

Execution proceedings. He had advised the petitioner to appeal against the judgment of the High Court to the Hon'ble Supreme Court, but

expressing his inability to do so for financial constraints, the petitioner continued consulting other Advocates in search of other available remedy.

Referring to the State of Karnataka v. Y. Moideen Kunhi and Ors. reported as AIR 2009 SCW 4491, Sh. D.R. Khajuria, appearing for the

petitioner submits that the delay in filing the Petition for re-hearing of the Appeal, requires to be condoned for advancing the cause of Justice,

allowing opportunity to the petitioner to contest the respondent's Appeal on merits. According to the learned Counsel, when considered on merits,

the judgment delivered in the Civil Second Appeal was likely to be reversed as the respondent's plea that the Civil Courts had no jurisdiction in the

matter was likely to succeed.

Respondent's learned Counsel, on the other hand, submitted that after the admission of the Appeal to hearing, the appellant had been avoiding

hearing in the Appeal and it was for this reason that he would always abstain when the Appeal was taken up for hearing. Dubbing the petitioner's

request for re-hearing of the Appeal, as dishonest, learned Counsel, contested the petitioner's pleas projected to seek Condonation of delay, as

incorrect, submitting that the petitioner had moved the application with bad intention of depriving the respondent of the fruits of litigation which was

initiated by him more than thirty years ago.

I have considered the submissions of learned Counsel for the parties and perused the records including the minutes of the Civil Second Appeal

and the Execution proceedings.

Before dealing with the contentions raised at the Bar, few facts need to be noticed.

A Suit for mandatory injunction directing the petitioner to vacate the Orchard measuring 33 kanals situated at Kote Garhi and handover the

vacant possession thereof to the respondent, filed on August 09, 1979 was decreed on December 04, 1997. The Decree was, however, set aside

by the First Appellate Court on February 27, 1999.

Respondent's Civil Second Appeal No. 19/99 against the decree of the First Appellate Court, was admitted to hearing by this Court on July

10, 2002.

The Appeal was thereafter listed for consideration on April 22, 2003, January 30, 2004, March 11, 2004 & October 06, 2004. On all these

dates of hearings, neither the petitioner nor his counsel appeared to defend the Appeal.

None had appeared on behalf of the petitioner on November 09, 2004 and October 10, 2004 when the Civil Second Appeal had been taken

up for hearing and reserved for judgment.

The records of the Execution proceedings before the learned Sub-Judge reveal that the petitioner had appeared first before the Executing

Court on August 08, 2005 through his Advocate seeking time for filing objections to the Execution Application. On the adjourned date of

September 29, 2005, the petitioner appeared through another Advocate, Mr. D.R. Khajuria, who sought time to produce Vakalatnama on behalf

of the judgment-debtor. It was on October 25, 2005 that Mr. Khajuria filed his Vakalatnama on behalf of the judgment-debtor seeking time for

filing objections to the Execution application. The case was thereafter adjourned four times, but no Objections to the Execution Application were

filed by the petitioner. The petitioner thereafter filed this Petition on December 16, 2005.

The present CONDL (C) No. 198/2005 has thus arisen in the facts aforementioned.

DISCUSSION:

The petitioner's Advocate's Affidavit filed in support of the petitioner's Miscellaneous Petition does not indicate that the petitioner had been

approaching his Advocate to know about the progress of his Case and all that it indicates is that the Learned Advocate could not appear in the

case because his Clerk had not noticed the petitioner's case in the Weekly Cause List. Petitioner has not filed the Affidavit of the Advocate's Clerk

who is stated to have not noticed the petitioner's case in the Cause List.

The continued presence of the petitioner before the Executing Court from August, 2005 through his two Advocates, until the filing of this

Miscellaneous Petition, indicates that he was aware about the delivery of judgment in the Civil Second Appeal. His plea that being an illiterate

Villager and Agriculturist, he could not understand the nature of the proceedings before the Executing Court and was under the impression that the

case had to be decided afresh by the learned Sub-Judge, appears to be an after-thought, coined only to seek condonation of delay in moving the

Court to seek hearing in the respondent's Civil Second Appeal. The Vakalatnama filed by the petitioner before the Executing Court specifically

indicates him to be the judgment-debtor who had engaged the Advocate to contest the respondent's Execution Proceedings, and in this view of the

matter, it cannot be said that the petitioner had no knowledge of the contents of the judgment delivered in the Civil Second Appeal. I am supported

in taking this view by the petitioner's Advocate's Affidavit where he is stated to have advised the petitioner to appeal against the judgment in the

Appeal to Hon'ble Supreme Court of India and this could be possible only if the petitioner had known about the contents of the judgment in the

Appeal.

In the circumstances, it is difficult to believe the petitioner's Cock and Bull story that his Advocate's clerk had not noticed his case in the Cause

List thereby disabling his Advocate to appear in the case.

The conduct of the petitioner, in the proceedings in the Civil Second Appeal, indicates that he had opted not to appear in the case either

himself or through his Advocate and his intentional absence in the case, appears to have left the Court with no other option but to hear the case in

ex-parte.

Even otherwise, the detailed judgment delivered by the Lord Chief Justice, after discussing the evidence led by the parties, the opinion of the

two Courts on the subject and the law on the point, may not warrant re-hearing of the case which concludes the litigation between the parties

which was initiated thirty years ago.

I do not find any substance in the petitioner's counsel's plea that the judgment delivered by Lord Chief Justice was likely to be reversed as the

Civil Courts had no jurisdiction in the matter, in that, ouster of jurisdiction of Civil Courts to decide the dispute between the parties, is not

contemplated by the provisions of the Jammu and Kashmir Agrarian Reforms Act, to which the petitioner's learned Counsel refers.

State of Karnataka v. Y. Moideen Kunhi and Ors., referred to by the petitioner's learned Counsel, is not applicable to the facts and

circumstances of the present case, in that, liberal approach had been suggested in the case in view of the peculiar facts and circumstances of the

case where the Government Machinery had failed to act with promptitude to protect the interest of the State.

The facts and circumstances of the present case do not justify liberal approach in the case as the case set up by the petitioner for condonation

of delay has not been found to be bonafide, in that, the grounds projected to seek Condonation of delay have been coined by the petitioner to

avoid having resort to the available remedy of Appeal against the judgment in the Civil Second Appeal, to the Hon'ble Supreme Court of India.

That apart, the facts and circumstances of the case may not justify condonation of delay in the case permitting the petitioner to re-open

consideration of the Civil Second Appeal afresh which after remaining pending in this Court for five years, had concluded more than thirty years

old litigation between the parties.

For all what has been said above, I am of the view that the petitioner has failed to satisfy that he had been prevented by any sufficient cause for

not filing Petition under Order 41 Rule 21 of the CPC for re-hearing of Civil Second Appeal No. 19/1999, decided in ex-parte, within the time

allowed by law.

Condonation (c) No. 198/2005 is, accordingly, dismissed along with CMP No. 34/2005.

Records be sent back.