S M IQBAL Vs. FIRDOUS AHMAD SHAH

JUDGEMENT

(1.) This revision petition by the petitioner-defendant in a pending suit before Sub-Judge, Special Mobile Municipal Magistrate, Srinagar is against the judgment dated 18-2-1993 passed by District Judge, Srinagar in an appeal, whereby he has dismissed the application for condonation of delay under Sections 5/14 of Limitation Act, consequently holding the appeal filed by him barred by time.

(2.) While considering the admission of this revision petition, some facts need to be narrated which lead to filing the revision petition and also to facilitate the disposal of the same.

(3.) The petitioner happened to be the Collector in Srinagar Development Authority and the respondent occupant of a structure in the shape of a shop situated at Baranpather, Batamallo, Srinagar. The structure referred to above appears to have been declared an unauthorised construction and, therefore, demolished by the defendants in the aforesaid suit. Some goods in the shape of hosiery and cosmetics are alleged to have been seized from the structure while dismantling it, prompting the respondent to file a civil suit before the Court of Sub-Judge, Special Mobile Municipal Magistrate, Srinagar where the proceedings were going on and evidence was being recorded, when the respondent suitor filed an application for direction to the petitioner to produce the goods before the court. In the meantime the petitioner had sought his premature retirement from Government service. He resisted the application of the respondent-suitor for production of goods, when vide order dated 13-3-1989, the petitioner was directed to produce the goods in the shape of hosiery and cosmetics etc. The petitioner challenged the order dated 13-3-1989 in revision before this court which was dismissed vide order dated 18-6-1989 as not maintainable. The order sought to be revised, being an order appealable under Order XXXIX, Rule 2, C.P.C., the petitioner filed a review petition before this court against the order dated 18-8-1989 dismissing the revision petition, taking the plea that the petitioner was not a party in the suit, therefore, no direction could be passed against him to produce the goods. The said review petition came to be dismissed vide order dated 23/10/1989. The petitioner field a Special Leave Petition against the order dated 23rd of October, 1989 dismissing the review petition before the Hon'ble Supreme Court, which also stands dismissed vide order dated 17-7-1990 of the apex Court, with liberty to the petitioner to pursue such remedy as may be open to him under law before an appropriate court. The petitioner, therefore, filed an appeal against the order of Sub-Judge, Special Mobile Municipal Magistrate, Srinagar dated 13-3-1989 before the District Judge, Srinagar after availing of filing of revision and review petitions before this Court and Special Leave Petition before the Hon'ble Supreme Court, as indicated above. The appeal in the absence of District Judge was entertained by Additional District Judge, Srinagar and order appealed against passed by Sub-Judge, Special Mobile Municipal Magistrate, Srinagar was stayed which order was confirmed by the District Judge on his resuming duties on 21-8-1990. During the pendency of the appeal, the respondent objected to the maintainability of the appeal, taking the plea that the petitioner has not accompanied the appeal with an application for condonation of delay, which is apparently barred by time, as required under Order 41, Rule 3(A) of the Code of Civil Procedure. The District Judge, Srinagar, after hearing the parties, did not extend the time in filing the appeal as applied by the petitioner by way of an application dated 4-5-1991 under Sections 5 and 14 of the Limitation Act during the pendency of the appeal, consequently dismissing the appeal as barred by time. It is this order of the District Judge dated 18-2-1993 which is in challenge in this revision petition before this court.