SAYEDA Vs. MOHAMMAD SIDIQ MIR

JUDGEMENT

(1.) Revision petitioner/ plaintiff filed suit 43 of 97 for declaration and injunction against the respondents/defendants. The suit at the material time was pending before Munsiff Judicial Magistrate Ganderbal. The suit was dismissed on 16.4.2001 for non appearance of the parties. Plaintiff filed an application for restoration of suit alongwith application for condonation on 5.6.2002 before the trial court of Munsiff Ganderbal. The trial court on consideration has come to the conclusion that no sufficient cause is made out for absence of plaintiff on material date, resulting in dismissal of the suit. Accordingly both applications were dismissed by order dated 5.4.2003.

(2.) The ground taken for condonation of delay and sufficiency of cause is that after the Munsiff Ganderbal was seized of the suit, plaintiff/applicant moved an application before District Judge, Srinagar for transfer of the suit and it was during the pendency of the transfer application. That suit was dismissed on 16.4.2001. The petitioner under mistaken legal advice preferred Appeal against the order of dismissal of the suit before District Judge,Srinagar. However, realizing the mistake, the appeal was subsequently withdrawn on 28.1.2001. Again a Civil Revision was filed against the order of dismissal. However, the Civil revision was dismissed by the High Court on 16.4.2001 with observation that the applicant/ plaintiff could pursue remedies available to her before appropriate forum and if steps are so taken, the forum was directed to dispose of the matter without being influenced by any observations made in the order of the High Court.

(3.) Thereafter, on 5.6.2002, petitioner moved restoration application under Order IX Rule 4 before Munsiff Judicial Magistrate Ganderbal along with an application for condonation of delay. The ground taken for seeking condonation of delay in the matter of belatedly moving motion from restoration of the main suit is `mistaken legal advice'. It is alleged that the trial Judge while dismissing the application has exercised powers within jurisdiction but jurisdiction is exercised with material irregularity. The sufficiency of cause is not appropriately addressed. The order suffers from non application of mind.