Altaf Ahmad Bhat vs Vice Chairman, Sda And Others

A civil suit for grant of permanent and mandatory injunction has been filed by present petitioner before the court of 2nd Subordinate Judge Civil (PT&E) Srinagar (for brevity "Trial Court"). Therein an order dated 9th July 2019 was passed by Trial Court, modifying its earlier interim order dated 5th March 2019, while disposing of application Under Order XXXIX Rule 1&2 CPC for grant of ad interim injunction as also application under Section 151 CPC, with a direction to respondents to start the process of the case of petitioner for allocation with respect to the subject matter of the land under rules within a period of two months.

Respondents have preferred a Civil Miscellaneous Appeal before the court of Principal District Judge, Srinagar, (for short "Appellate Court") against Trial Court order dated 9th  July 2019. Given delay in preference of Appeal, respondents have also moved an application for condoning delay. Appellate Court, vide order dated 19th December 2019, while staying Trial Court order dated 9th July 2019, has directed Trial Court not to take any coercive measures against respondents herein and permit respondent SDA to carry forward bidding process in respect of the space and asking petitioner to participate in the bidding process. It is this order of which petitioner is aggrieved and seeks setting-aside thereof on the grounds tailored in petition on hand.

I have heard learned counsel for parties and considered the matter.

Learned counsel for petitioner, to cement the case set up by petitioner in present writ petition, has urged that Appellate Court while granting time to petitioner to file objections to Condonation Application, has passed impugned order, which has, in essence, finally decided the whole case. Her further submission is that though main suit is pending before Trial Court, yet by impugned order Appellate Court has decided the said suit as well. She has also averred that it was imperative for Appellate Court to wait for objections from other-side against Condonation Application and decide the same at the first instance and only thereafter take up the Appeal for consideration and pass orders. However, Appellate Court has passed impugned order oblivious of the law regulating the field. In support of her submissions, learned counsel for petitioner has placed reliance on S.M. Iqbal v. Firdous Ahmad Shah,  SLJ 1995 299; State v. Mohd. Hussain 1997 SLJ 203; Principal Collector of Central Excise, Hyd v. Andhra Cements Ltd, 2000 Supreme (AP) 940; Vinod Kumar & anr v. Addl. Dy. Commissioner & ors, 2009 Supreme (J&K) 662; S.M.Chopra v. Huda & anr, 2016 (2) CPR(NC) 345; Pushpaben Balwantrai v. Nandkumar Ramanlal, 2004 Supreme (Guj) 68.

Per contra, Mr Zubair Ahmad, representing respondent SDA, has insisted that there is no infirmity in the impugned order inasmuch as Appellate Court was not prohibited from passing an interim order pending application for condonation of delay. To bolster his submissions, he has relied upon the judgements rendered in the case of Srinagar Development Authority v. Mohd. Amin Jogoo (1997) SLJ 82; Baljeet Singh Manhas v. Jammu Development Authority and others (2003) 2 JKJ 404; JDA & anr v. Ishwar Dass, (2009) Sup JKJ 419.

In the aforesaid milieu, it would be apt to have glimpse of Rule 3-A of Order XLI of the Code of Civil Procedure. It provides:

"3-A. Applications for condonation of delay. - (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 ort rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."

It is pertinent to mention here that Rule 3-A of Order XLI CPC, comprising of sub-rules (1) and (2), was inserted to secure determination of question as to the limitation at the stage of admission of appeal. Sub-rule (3) has been inserted so that the Court shall not make an order of stay till Application for condonation of delay is decided. In this regard I am fortified by judgements rendered in the cases of S.M. Iqbal (supra) and S. M. Chopra (supra). It has been held that an appeal filed beyond limitation period must not only be accompanied by an application setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within limitation period, but even no stay should be granted by the Appellate Court unless application for condonation of delay is allowed. Having said that the order impugned could not stand the legal scrutiny and is, thus, liable to be set-aside.

For the reasons discussed above, writ petition is allowed and impugned order dated 19th December 2019, passed by Principal District Judge, Srinagar, in Civil Miscellaneous Appeal, bearing File no.255/M, titled Vice Chairman, Srinagar Development Authority and others v. Altaf Ahmad Bhat is set-aside. The Principal District Judge, Srinagar, shall decide firstly the application for condonation of delay and then decide the appeal on merits. Petitioner shall file his objections in opposition to Application for condonation of delay, on or before next date of hearing before the Appellate Court, i.e.19th February 2020. Disposed of.