AMIT ANGRAL Vs. MONA SHARMA

JUDGEMENT

(1.) The appeal stands filed by the applicant against the Judgment and Decree dtd. 28/5/2019 passed by the court of learned 2 nd Additional District Judge, Jammu. The appeal is accompanied by the application seeking condonation of delay in filing the appeal. It is submitted in the application that the applicant came to know of the execution petition having been filed before the court of learned 2nd Additional District Judge, Jammu only in the month of December, 2019 and thereafter he got the copy of judgment and decree on 21/12/2019. The applicant never received summons in the suit filed by the respondent No.1 and, therefore, was not aware of the suit and the proceedings which took place in the said suit. The application also states of filing of review against the judgment and decree on 28/1/2020 and the applicant came to know of the dismissal of the review dtd. 22/6/2020 later on due to the COVID restrictions. He did not receive the copy of the review order despite his efforts due to restrictions of entry in the court because of COVID-19 pandemic. The applicant received copy of the order on 4/12/2020 though applied for the same on 23/11/2020 and received the copy from the Advocate on 13/12/2020 and copy of another report dtd. 15/12/2020 on 16/12/2020. The delay of 492 days in filing the appeal covers the period of 203 days and is required to be excluded as the applicant got the knowledge of the decree on 21/12/2020 and from 23rd March to 23/11/2020 the delay is on account of COVID-19 pandemic and restrictions and 12 days from 23/11/2020 to 4/12/2020 on account of receiving of the copy of the impugned judgment for filing of the appeal before this Court. Infact there is delay of only 31 days in which the applicant had also filed the review against the judgment and decree. The delay in filing the appeal is neither intentional nor deliberate but due to the circumstance beyond the control of the applicant.

(2.) The objections to the application stand filed by the respondent No.1 wherein it is submitted that the applicant along with the respondent No.2 had appeared before the trial court on 27/3/2018 and the case was posted for filing of the written statement for 19/4/2018. The defendants in the suit were proceeded ex-parte on 19/1/2019 but the same was set aside and the case was heard by the court. The applicant had knowledge of the pendency of the suit and also filed review petition against the judgment and decree also on the ground that he did not appear before the court. The review petition was dismissed vide order dtd. 22/6/2020. As the review was instituted during the lockdown period and the case was also argued by the counsel, therefore, there is no question of having no knowledge about the passing of the order on review by the court below. No sufficient cause is shown by the applicant for not filing the appeal within the statutory period. The applicant and the co-defendant are close relations and the case was being pursued by the respondent No.2 before the trial court of which the applicant had knowledge. Mr. Umesh Sharma had appeared before the trial court as counsel for the applicant and the respondent No.2 herein. It is in the light of the aforesaid submissions made in the application that the respondent No.1 seeks dismissal of the application in hand.

(3.) The learned counsels for the applicant and the respondent No.1 agreed that the application can be heard in the absence of the respondent No.2 herein as the applicant is aggrieved of the judgment and decree passed by the trial court.