PIR GHULAM HASSAN Vs. SYED MOHD SHAH

JUDGEMENT

(1.) THIS Civil Misc. Petition has been preferred by the appellants on 17. 11. 1978 under section 5 of the Limitation Act for condonation of delay in presenting Civil First Appeal No. 55 of 1978 and has arisen in the following circumstances of the case.

(2.) A suit for partition of immovable property was pending between the parties in the court of the learned Additional District Judge, Srinagar. As far back as on 14. 7. 1969 a preliminary decree was passed for partition of the property and a Commissioner was appointed for this purpose. A Civil First Appeal (No. 38 of 1969) came to be filed in the High Court which was dismissed on 15. 1, 1973, Then the case remained pending in the trial court for a long time as the Commissioners report was not made available. In the meanwhile a Civil Revision (No. 134 of 1972) came to be filed in the High Court against an order of the trial court ordering ejectment of all the persons which had entered upon the suit property without any right or title. The said Revision was decided on 29.7.1976 and the parties were directed to appear in the Trial Court on 16.8.1976. Then the case again remained pending in the trial court awaiting the report of the Commissioner. The parties did not appear in the court on some hearings with the result that the suit was dismissed in default on 26.10. 1976. Then it was restored to its original number and the case remained pending for the report of the Commissioner. On 28. 3. 1977 the defendants were not present and were set exparte. On that very day after a long wait the Commissioners report was received by the court. The learned trial court asked the plaintiffs to file their objections to the report of the Commissioner. The defendants were not present on that day and were set ex -parte on that very day. The court did not even issue any notice to them about the receipt of the Commissioners report and nor asked them to file their objections thereto. The interim order passed by the trial court on 13.7.1977 is self -contradictory in respect of the presence of the defendants. In the begining they have been shown absent but at the end of the order their presence has been recorded. On that day the learned trial Judge referred the case to the District Judge as he did not want to hear the case on personal grounds. On coming up the case before the learned District on 30.7.1977 it appears defendants were not present. The learned District Judge did not accede to the request of the learned Additional District Judge and sent back the case to him for hearing. On receiving the case back on 6. 8. 1977 the learned Addl. Distt. Judge issued a notice only to one of the defendants namely Mst. Nadira. He did not summon the other defendants. Mst. Nadira appeared and filed her objections to the Commissioners report. Thereafter on 23.5.1978 the trial court passed a final decree for partition of the suit property in terms of the report submitted by the Commissioner in absence of the defendants except defendant Mst. Nadira.

(3.) THE plaintiffs filed an execution application on 10.10.1978 and the executing court issued notices to the respondents. One of them Shrl Jalal -ud -Din appeared in the said court for the first time on 3.11.1978.