S. No. 16 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR RFA 6/2025 N.P. Murgan …Appellant/Petitioner(s) Through: Mr. Ateeb Kanth, Advocate Vs. Khurshid Ahmad Malik ...Respondent(s) Through: None CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 06.06.2025 CM No. 324/2025: 1. This is an application seeking extension of time for condoning the delay in filing the appeal bearing RFA No. 6/2205 against the judgement and decree dated 30.09.2022. 2. It is averred in the application that the appellant, who is a resident of Chennai Madras, is carrying a business in wholesale fruit market at Chennai and is in trade of selling of various fruits. 3. Perusal of the file reveals that a suit under Order XXXVII of the Code of Civil Procedure (CPC) came to be filed by plaintiff, respondent herein, for recovery of Rs.1.20 Crore along with interest and costs. Upon having knowledge and receiving the requisite summon, defendant, appellant herein, put in attendance before the Trial Court on 10.03.2022. Appellant sought leave to appear under Order 37 (3) CPC by way of an application; copy whereof was furnished to plaintiff-respondent. Counsel for parties remained present before the Trial Court o 12.04.2022. Plaintiff moved application under Order 37 Rule A,B. Thus, summon for judgment was issued and matter was fixed for hearing on 23.04.2022. The appellant made an application seeking leave to defend; copy whereof was provided to plaintiff. On 07.05.2022, counsel for parties advanced their argument and it was by virtue of order dated 28.05.2022 that the Trial Court came to the conclusion that there were triable issues between the parties which could only be decided during full-fledged trial and therefore appellant’s application was allowed and suit was ordered to be heard as a regular suit with a direction to appellant to file written statement on next date of hearing. However, thereafter, appellant did not cause his appearance nor did he file written statement. Resultantly, appellant was set ex parte on 27.07.2022. 4. At one point of time, appellant approached the Supreme Court with Transfer Petition (Civil) no.2550 of 2023 titled as N. P. Murugan v. Khurshid Ahmad Malik. When the matter came up for consideration, joint request was made by learned counsel for parties and as a consequence of which, the Supreme Court directed transfer of the court from the files of Principal District Judge, Shopian, to the court of Principal District Judge, Srinagar. 5. Appellant filed an application before the Trial Court for condoning delay in filing application under Rule 3 to Order 37 CPC for setting aside ex parte judgement and decree dated 30.09.2022. The said application by order dated 18.11.2024 came to be dismissed by the Trial Court. Against this order, appellant filed a petition, being CM(M) no.468/2024, which came to be disposed of by virtue of order dated 11.12.2024, directing Executing Court to consider the pleas taken by appellant in his petition. 6. Mr. Ateeb Kanth, counsel for appellant, would contend that appellant/ applicant is resident of Chennai, Madras and therefore it was not possible for him to be present on every date of hearing before the Trial Court. The grounds which have been taken for condonation of delay are that the applicant is resident of Chennai, Madras where he is carrying on a business of aforesaid fruit market and is in the trade of selling various fruits such as apples, pomegranate, mango etc. In the year 2017, respondent-plaintiff used to supply apples to defendant- appellant to sell in the local market for which he was entitled to commission of 7% of the total sale value. He submits that appellant issued a cheque as security and that it is on the basis of the said cheque that respondent-plaintiff filed a suit and the decree was passed in ex parte. He also submits that the appellant could not travel to Srinagar and it would take 8 to10 hours to travel to Kashmir from Chennai. Appellant is a senior citizen of above 65 years of age and it was difficult for him to participate to contest the suit as it was adjudicated in District Shopian which was far away from Srinagar Airport and distance to travel was more than 50 kilometers from Srinagar Airport to Shopian and was likely to take 3 to 4 hours to reach there. Appellant also received threats from respondent and was terrified to reach Shopian District and rather was not in a position to reach Shopian. He preferred a transfer petition before the Supreme Court of India in the year 2023 and the case was transferred from District Shopian to Srinagar and by that time, execution had already begun and he had no defence to take. He was not in a position to travel to Srinagar because of his health condition and was also advised by Medical Officer not to mobilize and to take rest. This is all what is being said about the delay of 754 days. 7. Section 5 of the Limitation Act provides for condonation of delay in filing the appeal or application provided sufficient cause for not being able to file appeal/application during the limitation period is shown. 8. On the applicant’s own showing that he has approached the Court at Shopian and filed an application seeking leave to defend which was granted, but once the leave was granted, he did not cause appearance before it. No reason has been given by the applicant that once he was granted leave to defend, what prevented him from approaching that Court. Thereafter, he by his own showing filed an application under Rule 4 to Order 37 CPC before the Trial Court ignoring the fact that the suit was treated as a regular suit. Therefore, the application under Rule 4 to Order 37 CPC did not apply, and instead of filing appeal, he filed a petition under Article 227 of the Constitution of India. He did not prefer to file appeal challenging the judgement and decree passed in ex parte. 9. When the contents contained in the application/appeal are perused, it becomes evident that the applicant has been negligent. He could have, instead of filing other proceedings, filed an appeal or at least an application under Order 9 Rule 13 CPC. He approached the Trial Court with application under Rule 4 to Order 37 CPC. He also filed a petition under Article 227 of the Constitution, which both have since been dismissed/disposed of. It cannot be heard saying from applicant that he was not aware of the pendency of the proceedings before the Trial Court. He associated himself with the proceedings when at the initial stage he caused appearance before the Court at Shopian and filed an application there. When the summary suit was treated as a regular suit, he remained absent and kept silence and permitted the proceedings to ripe and culminate in ex parte judgment and decree. 10. In such circumstances, instant application no ground muchless sufficient ground or cause is shown by applicant/appellant to condone the delay in filing the appeal. Therefore, the application is dismissed and as a corollary thereof the appeal is also dismissed. 11. Interim direction(s), if any, shall stand vacated. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 06.06.2025 Misba