Jammu & Kashmir High Court
Mst. Sayeda W/O Lassa Mir vs Mohd Sidiq Mir And Ors. on 3 April, 2004
JUDGMENT
Syed Bashir-ud-Din. J.
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 along with application for condo nation 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 condo nation 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 However, realizing the mistake, the appeal was subsequently withdrawn on 28.1.2001.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 condo nation of delay. The ground taken for seeking condo nation 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.
5. The counsel for the parties are heard. Perusal of record reveals that the suit is dismissed by trial court on 16.4.2001. The petitioner/plaintiff had moved transfer application before District Judge Srinagar seeking transfer of this Suit to some other court. It was during pendency of the transfer application that the suit was dismissed. If so, neither any Appeal nor revision would lie against the above trial court order in as much as such an order is neither covered by Appeal provisions nor revisional jurisdiction of Civil Procedure Code is attracted. Petitioner/plaintiff's remedy as provided by Order IX Rule 4 was either to bring a fresh suit ( subject to law of limitation) or to apply for an order to set aside the dismissal in the event of satisfying the court about sufficiency of cause for non appearance. Petitioner/plaintiff failed to avail either of the two remedies. Instead rushed to file an Appeal which was dismissed and then to invoke revisional jurisdiction, resulting in dismissal of the revision. Not only so, petitioner again filed a fresh Appeal on 15.4.2003 in the Court of Addl. District Judge, Srinagar against the self same order of dismissal ordered under Order IX Rule 3, when such an Appeal had been earlier dismissed. However, this Appeal was withdrawn on 14.06.2003. This circumstances is not even mentioned in the application as conceded by the Plaintiff's counsel. In the circumstances, can it be said that the petitioner had made sufficient cause before the trial Court to seek condo nation of delay and restoration of the suit. The trial court has on consideration come to the conclusion that 'no sufficient cause', is made out for condoning the delay and restoring the suit and therefore, dismissed both the applications.
6. In his submissions, the Ld. Counsel for petitioner/plaintiff has submitted that taking appeals and filing Revision against the impugned order of dismissal of the suit is by the counsel ( Mr. A.H.Tahir, Advocate), who gave wrong legal advice to petitioner. Petitioner believing her counsel failed to take recourse to remedies available to her under Order IX Rule 4 C.P.C. She abided by her counsel's advice, but after about 13 months realizing the mistake, she filed the application which is dismissed by the impugned order dated 5.4.2003. Under Section 5 of the Limitation Act, the powers of the court to condone delay and extent the prescribed time period applies to the case of an application to set aside an order of dismissal of a Suit for plaintiff's default when the applicant satisfies the court about sufficiency of cause in not preferring the Appeal or not making application within the prescribed period. The cause advanced in this case is that the applicant was prosecuting Civil proceedings before appellate and Revisional fore when ultimately it was found that the Appeal or Revision would not lie in such a matter. The question of exclusion of time would arise only if the Court is to exercise its discretion on question of sufficiency of cause within parameters of enabling provision of Section 5 of Limitation Act. Legal effect of plea of the proceedings taken bonafide in good faith and Court without jurisdiction, does not arise here. Instead the question of sufficiency of cause for permitting the cause beyond prescribed time/condoning delay under Limitation Act requires that the cause is reasonable and rooted enough to the facts and circumstances of the case ,so as to be treated as sufficient in those facts and circumstances of a case. Mr. G.R. Tantrey ,Advocate has referred to Ram Ujarey vs. Union of India ( A.I.R 1999 SC. 309), in support of his submission to contend that pursuing of remedies in a wrong forum is a sufficient cause. However, this is not so, the Apex Court in the context of Civil Appeal granted against the order of Central Administrative Tribunal in a service matter for declaring reversion illegal, condoned the period spent before a wrong forum on the ground that if the delay before the wrong forum with no jurisdiction is not condoned, the party would be driven out of limitative process. The condo nation of delay by the Apex Court in the case is in the peculiar circumstances of that case arising out of a service matter which has no parallel on facts and circumstances to the case at hand. The authority is clearly distinguishable.
7. The Ld. counsel also refers to State of Bihar and others vs. Kameshwar Prasad Singh and another with two other SLPs(Civ) (AIR 2000 SC: 2306 ) in aid of his submission that delay in filing the petition merits to be condoned. On perusal of this referred judgment, it is seen that the Supreme Court condoned the delay of 679 days in filing SLP in the three Civil Appeals involving service rights of Police officers for promotion to various ranks, in the facts and circumstances singularly single to these Appeals. The Court was concerned with condo nation of delay in the matter of allowing the Appeals/ Spl. Leave petitions (Civ) before it against the orders passed by the High Court of Patna. The Apex Court was primarily concerned with condo nation of delay in respect of cases filed in Supreme Court. The authority has no application to the facts and circumstances of the case. The impugned order is not shown vitiated by any error of jurisdiction or to suffer from any legal infirmity. No case of failure of justice is even made out.
8. In the aforesaid view of the matter, this Revision Petition is without merit and is accordingly dismissed.
9. Inform court below of this order. Send back record.