GH RASOOL MAGRAY Vs. HAJI GH HASSAN

JUDGEMENT

(1.) THIS appeal is directed against the order dated: 24 -08 -2000, recorded by the learned District Judge, Srinagar, in civil file titled as Ghulam Rasool Magrey Vs. Gh. Hassan Arm and others. It stems out of those circumstance which are summarised as: -

(2.) A civil original suit instituted by the appellant plaintiff against the respondents pending decision before the learned District Judge, Srinagar, came to be dismissed on 23 -12 -1989. On the same day an application before the trial court came to be filed for its restoration. This petition for restoration of the civil original suit also came to be dismissed on 18 -08 -1990 in default for the appearance of the appellant/plaintiff. On 26 -06 -1991, another application for restoration of the said application for restoration of the civil original suit came to be filed by the appellant/plaintiff, in this behalf an application for condonation of delay came to be filed by him on 22 -05 -1992 i.e. well after about ten months and twenty six days of the presentation of the second application for the restoration of the suit application. The respondents came to resist the said petition by filing their objections. In support of his petition for condonation of delay, the appellant/applicants came to lead its evidence. The respondents did not lead any evidence in rebuttal. The trial court on conclusion of the proceedings and on appreciation of the appellants evidence by virtue of the impugned order came to reject the said application for condonation of delay and in consequences there of came to dismiss the application of restoration for ihe restoration of the suit as time barred.

(3.) THE stand of Mr. Lone, the learned counsel for the appellant is that no period of limitation is provided under Schedule I of the Jammu and Kashmir Limitation Act (hereinafter referred to as the Act) for an application for restoration of the suit, therefore, the case in hand falls under Article 181 of the Act which prescribes limitation of three years time period from the date when the right to appeal accrues. In this behalf he has relied on SLJ 1979 page 6. His further contention is that as a matter of abandon cautious, the appellant has filed an application in hand for condonation of delay in presenting the said application for the restoration of the suit application in which the appellant has led his evidence, but the trial court without appreciating this evidence of the appellant in its right perspective has erroneously rejected this application.