STATE OF J&K Vs. GH MOHD KHURU

JUDGEMENT

(1.) THROUGH the medium of this application the petitioner/appellant through their counsel have sought indulgence of this court to condone the delay and to extend period of limitation in presenting the appeal against the decree and judgment recorded by the learned District Judge. Baramulla on 16 -6 -1994 in Civil Original Suit No. 50 of 1983 tilled as "Ghulam Mohammad Khuru Vs. State of J&K and Ors." for recovery of Rs. 38.1757 - together with interest at the rate of 15% per annum. It is inter -alia maintained in the petition that the Public Prosecutor who was defending the case on behalf of the petitioner/appellant before the trial Court informed about the passing of the impugned decide by virtue of his communication dalcd: 23 -07 -1994 which was received done the delay and to extend period of limitation in presenting the appeal against the decree and judgment recorded by the learned District Judge, Baramulla on 16 -6 -1994 in Civil Original Suit No. 50 of 1983 titled as "Ghulam Mohammad Khuru Vs. State of J&K and Ors." for recovery of Rs. 38,175/ - together with interest at the rate of 15% per annum. It is inter -alia maintained in the petition that the Public Prosecutor who was defending the case on behalf of the petitioner/appellant before the trial Court informed about the passing of the impugned decree by virtue of his communication dated: 23 -07 -1994 which was received by the petitioner/appellant No. 2 on 10 -08 -1994. That after the receipt of the said communication on 1 -08 -1994, submission was made to the Superintending Engineer and to the Chief Engineer respectively for filing of appeal. That the communication of the Law Department was received OH26 -09 -1994. That on 24th July, 7th, 14th, 26th, August, 4th, 11th, 18t, 25th, September, 2nd, 9th, 16th, 23rd, October and 6th November, 1994 were Sundays; 15th August, 8th September, 3rd October and from 13th Nov. up to 21st Dec. 1994 which includes the Sunday were holidays; That 25th and 27th and 31st July, 26th August, 29th, 31st, September, 11th October 113th October and 03 -11 -1994 were Hartal (strikes) days. That from 01 -01 -1995 upto 16 -01 -1995 the courts were closed. That the High Court remained closed for winter recess from 02 -02 -1995 up to 20 -02 -1995. That on 20th Feb. upto 23rd Feb. 1995 learned counsel for the petitioners remained busy in the Jammu Wing of the High Court. That because of the aforesaid facts there is no wilful delay on the part of the petitioner/appellants in preferring the appeal in hand. The respondent has resisted this application by filing his objections, wherein he has inter -alia stated that the ground put forth in this application for condoning the delay and for the extension of time for appeal are nothing but a concocted story. He has placed on file certified copy of interim order recorded by the learned District Judge, Baramulla in a case No. 28 -Appeal on 02 -12 -1986 titled Mohammad Rajab Singh and Ors. Vs. Gh. Mohammad Singh and Anr. pending before him for the inspection of this court.

(2.) HEARD learned counsel for the parties.

(3.) ARTICLE 156 of the Limitation Act prescribes the limitation period of ninety days for preferring the appeal under the CPC to the High Court against the decree and order appealed from the date of passing of the said decree or order. From the perusal of the file it is manifest that impugned judgment and decree came to be recorded by the learned District Judge, Baramulla with respect to suit in hand on 14 -06 -1996 and appeal against it ought to have been filed within ninety days which means before 13th September, 1994 But it has been filed on 22 -02 -1995 after a period of condonation of delay and extension of period of 160 days. In considering the application for condonation of delay and extension of period of limitation under section 5 of the Limitation Act "hereinafter to be referred to as "the Act, the test to be applied by the Court is as to whether the delay has been satisfactorily and reasonably explained by the petitioners/appellants and as to whether the petitioners/appellants have acted deligently failing which it will deprive him. the petitioner/appellant from seeking condonation under sectin 5 of the Act. Having regard to this law I find that the contentions raised by the petitioner/appellant in the bid to explain the delay is not fenciful alone but a concocted. The explanation for delay in presenting the appeal is neither reasonable nor satisfactory. I say so, because on their own showing it is manifest that the petitioners/appellants were having full knowledge about the pendency of the civil suit before the court of learned District Judge. Baramulla as they were duly represented by their counsel, the Public Prosecutor, and it is admitted by them in their application that they were informed by their said counsel about the passing of the impugned decree and order by virtue of his communication dated: 23 -07 -1994 which was received by them on 10 -08 -1994, that is to say, well within ninety days of the limitation after passing the impugned decree. In this application, the petitioners have tried to explain the delay by the enumerating the days of Sundays. Holidays. Hartal (strike) days and the days of vacations of the Court which foil from 24th Sept. upto presentation of the appeal at hand but have failed to render any explanatin for the intervening working days. It is also on their own showing that they got the knowledge about the passing of the impugned decree on 10 -08 -1994, that is to say, well within the period of limitation of ninety days after its passing but it remains unexplained as to why the application for issuance of certified copy was filed on 09 -12 -1994 before the trial court. For the days of January, 1995 upto 02 -02 -1995 it is contended by the petitioners/appellants that the courts were closed in connection with the winter vacations from 01 -01 -1995 upto 16 -01 -1995 and because of vacations of High Court from 02 -02 -1995 upto 20 -02 -1995. Again for the remaining working days there is no explanation lo offer. Moreover, when the registry of the High Court remains open during the vacations. It is inter -alia pleaded that on 11 -10 -1994 mere was Hartal (strike) at Baramulla but the certified copy of the interim order recorded on 11 -10 -1994 in case 237 appeal titled as "Mohammad Rajab Singh and Ors. Vs. Ghulam Mohammad Singh and Anr." recorded by the learned District Judge, Baramulla, placed on the file, reveals mat the court of learned District Judge, Baramulla was sitting on this date which fasilies that on this date there was Hartal (strike) at Baramulla.