EXECUTIVE ENGINEER CIVIL INVESTIGATION Vs. MOHAMMAD AKRAM BHAT

JUDGEMENT

(1.) - Executive Engineer, Civil Investigation and Design Division, PDC, Sopore, has filed this application seeking the indulgence of this Court in condoning the delay of 167 days in filing the Civil 2nd appeal, chiefly on the grounds that in the Civil first appeal filed by him before the Court of the learned District Judge, Bandipora, along with an application for condonation of delay, calling in question the judgment and decree passed by the trial court on 24.11.2012, the District Judge dismissed his application by an order dated 24.03.2015. The appellant filed a civil first appeal before this Court, which was dismissed in default on 14.08.2015. The appellant filed a re-admission motion and subsequently sought the withdrawal of the same, which was allowed. The appellant-applicant filed the application along with Civil first appeal before this Court with due diligence and, therefore, the time taken for prosecuting this appeal has to be excluded from the period of limitation as he had chosen a wrong remedy under the bona fide belief and on legal advice tendered by his counsel and in case the application for Condonation of delay is not allowed, the appellant department will suffer an irreparable loss. The application of the appellant is buttressed with an affidavit.

(2.) In his objections, the respondent has vehemently resisted the application of the appellant, primarily, on the grounds that the application for Condonation of delay in preferring the Civil 2nd appeal is grossly misconceived on facts and law; it has been filed in a most casual manner. The appellant has engaged the respondent in a series of unwarranted litigations. The respondent filed a suit for accounts and release of payment before the Court of learned Sub Judge, Bandipora on 25.11.1999. A preliminary decree was passed in his favour on 19.09.2003, which was followed by the final judgment and decree dated 24.11.2012. It was based on reasons. The appellant/defendant assailed the said judgment in an appeal along with an application for Condonation of delay alleging negligence of the counsel. The Learned Principal District and Sessions Judge, Bandipora, dismissed the said application. Thereafter, the appellant filed a Civil first appeal against the impugned order of District Judge, before this Court, which came to be dismissed for want of prosecution on 14.08.2015. The appellant-applicant with a litigious mind filed an application for restoration of the appeal along with an application for Condonation of delay, which was subsequently withdrawn and later on he filed the instant application with the aim and object to drag and engage the respondent unnecessarily in a cycle of vexatious litigation. The appellant-applicant has not tendered any plausible explanation in his application nor has he shown any sufficient cause for the Condonation of delay. In the end, the respondent/plaintiff has prayed that the application be rejected and the appeal be dismissed with costs as the same shall further the ends of justice.

(3.) Heard and considered.