STATE OF J&K Vs. DORJAI TSERING

JUDGEMENT

(1.) THIS is an application for condonation of delay in filing the appeal the appeal against the judgment and decree passed by District Judge, Leh. Camp Kargil on 4.10.1995, whereby exparte decree had been passed against the applicants as well as the Chairman, J&K Board of School Education, Srinagar. The appeal was barred by time, as such present application was filed. When the matter came up before a learned single Judge of this court, on 5th May, 1997 without issuing notice to the opposite side delay was condoned and the appeal was ordered to be admitted. Respondent No.1 feeling dissatisfied with the order of admission preferred CIMA/LPA No.13 -A of 1997 which was disposed of with the consent of parties and order of admission passed by the learned single Judge on 5th May, 1997 was set aside, it was further ordered that if respondent No.1 (appellant in CIMA/LPA No: 13 -A of 1997) would file objections to the application for condonation of delay, the application shall be decided by the Single Judge on merits. It is in the above back -ground that this application has come up for consideration.

(2.) FACTS relevant for the present application are very few. Exparte decree had been passed in favour of respondent No. 1 (hereafter referred to as plaintiff) and against the Chairman, J&K Board of School Education, Srinagar and Appellants (hereinafter referred to as defendants 1, 2 and 3 respectively). Relief granted was that the date of birth of plaintiff was declared to be 25.3.1946 and thus suit was decreed with costs. Admittedly appeal had not been preferred within time in this court. As per endorsement made by the registry on application under Section 5 of the Limitation Act, it is clear that it was presented by the learned counsel on 3rd May, 1997. Since in the ordinary course of things appeal against the impugned judgment and decree was required to be preferred at Srinagar as the case related to Leh, an application seeking permission of the court to present the same before Jammu Wing was filed and the permission was accorded on 1st May, 1997. According to the averments made in the application notice of execution was received by the Superintending Engineer Leh, who informed applicant No.2 namely Secretary to Government, Public Works Department Jammu on 4th April, 1997, whereafter steps were initiated to get the appeal drafted. It was further averred by the applicants that from 12th to 16th April, 1997 there were holidays and thereafter from 18th to 20th April, 1997 needful could not be got done. In this background it was pleaded that the delay was neither willful nor deliberate and was only due to circumstances because applicants could not get the knowledge of passing of the decree. Thus condonation of delay in filing the appeal is prayed for.

(3.) ALL these pleas urged in the application were seriously contested and resisted by the plaintiff, whereas no reply has been filed by defendant no.1 -Board. Whole thrust of the reply is that the applicants were well aware of the decree in question as they had been notified in that behalf. Reliance was placed on communications, Annexure RA dated 6th December, 1996 addressed to Superintending Engineer, Leh by the plaintiff; Annexure RB dated 26th December, 1996, a communication from District Superintending Engineer, Leh to Executive Engineer, Special Sub -Division Nyoma; Annexure RC dated 3rd January, 1997, a communication from District Superintending Engineer, Leh to the plaintiff and Annexure RD dated 15th February, 1997, a communication from plaintiff addressed to defendant no.3.