Srinagar, Mar 07: The High Court of Jammu & Kashmir and Ladakh held that the seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is the period of delay which runs as per the Limitation Act.
The court of Justice Vinod Chatterji Koul passed the ruling while setting aside an order passed by District Judge, Kulgam on November 21, 2013 dismissing an application seeking condonation of delay of 24 days while holding it as time barred.
The petitioner had filed an appeal to challenge a judgment/decree passed by Munsiff Damhal Hanji Pora, Kulgam (Trial Court) on December 29, 2012 regarding land dispute.
Along with appeal, the petitioner had also filed an application to condone the delay of 24 days in filing the appeal. However, both were dismissed in November 2013.
The court after perusing the material on record, noted that First Appellate Court (District Judge, Kulgam) has taken into account the absence of appellant before the Trial court as according to First Appellate Court the appellant has not given sufficient reasons that prevented him to appear before Trial Court during pendency of the civil suit till it culminated in passing of ex parte decree.
Justice Koul observed that First Appellate Court should have been alive to the position that an application seeking condonation of delay is to be decided while taking liberal view subject to explanation given by appellant more particularly when even there is not any inordinate delay.
The bench said that appellant was to explain the delay which occasioned in not filing the appeal within the limitation period after passing of the decree and judgment. He was required to explain the period of delay.
“However, the First Appellate court has passed order impugned rejecting the application by holding that no sufficient cause has been shown by the appellant for his absence before the Trial court for the period ex parte proceedings were initiated against him till passing of the judgment,” the court pointed out.
The court said that the observation and finding of the First Appellate Court are erroneous as the law provides that delay is to be explained for the period beyond the period of limitation prescribed.
Justice Koul held that limitation in this case would run from the date of passing of the decree and not from any date prior to passing of the same
“The applicant-petitioner, therefore, was required to explain that what occasioned after passing of the decree, which is explained in the application supported by an affidavit.”
The bench said that the First Appellate Court instead of limiting consideration to that period has gone beyond the provisions and has taken into account the period of absence before the Trial court.
While terming the finding of the First Appellate Court perverse, Justice Koul said, “The seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is the period of delay which runs as per the Limitation Act.”
Allowing the plea, the court said, in this case the period of limitation had started from the date of decree, “therefore, any delay after explaining of such limitation was only to be explained by the appellant.”
