1 S.No. 9 Regular List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) 860/2023 NAZIR AHMAD SOFI AND ORS. …Petitioner/ Appellant(s) Through: Mr. Arshad Andrabi, Advocate V/s CHIEF SECRETARY TO GOVERNMENT OF J AND K AND ORS. …Respondent(s) Through: Mr. Bikramdeep Sing, Dy AG with Ms. Naubahar, AC CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE. ORDER 05.03.2025 1. In the instant petition filed under Articles 226 and 227 of Constitution of India, the petitioners herein have challenged order dated 22.08.2022 passed by the Court of learned Principal District Judge, Bandipora ( for short the appellate court) in case titled as “Director Local Bodies through Executive Officer, Municipal Committee, Bandipora Vs. Nazir Ahmad Sofi and Ors.”. 2. Facts in brief emerging from the record would reveal that the petitioners herein filed a suit for mandatory injunction against the respondents herein before the Court of learned Sub Judge, Bandipora (for short the trial court) for payment of compensation qua the land measuring 1 kanal and 7 marlas situated at Bandipora claimed to have been acquired by the respondents, belonging to the petitioners. 2 3. The suit came to be decreed in favour of the plaintiffs/petitioners herein on 20.12.2012 by the trial court directing the defendants/respondents to pay compensation to the petitioners herein qua the land in question. 4. The judgement and decree dated 20.12.2012 supra came to be challenged in a time barred appeal by the Director, Local Bodies through Executive Officer, Municipal Committee, Bandipora , not being a party in the suit supra, as person aggrieved before the appellate court on 14.07.2014 and consequently wherein the appellate court passed an order of stay on 14.11.2014 staying the execution of the decree. 5. The plaintiffs/petitioners herein, in the meantime, had filed an execution petition before the executing court for execution of the judgement and decree. 6. The plaintiffs/petitioners herein had filed OWP No. 1006/2014 before this Court prior to the filing of the above execution petition, however seeking in essence the execution of the judgement and decree dated 20.12.2012 which petition came to be disposed of by this Court on 15.07.2014 holding the petition to be not maintainable on one hand and on the other hand provided a liberty to the plaintiffs/petitioners to approach the court of competent jurisdiction for execution of the decree, whereupon the plaintiffs/petitioners filed the aforesaid execution petition before the executing court. 3 7. In the meantime, the appellate court proceeded with the time barred appeal supra and in terms of order dated 16.05.2015, held the appellant in the appeal to be “person aggrieved” of the judgment and decree and simultaneously allowed the application for condonation of delay after hearing the appearing parties before it. 8. The plaintiffs/petitioners herein feeling aggrieved of the said order dated 16.05.2015 filed a revision petition before this Court being Civil Revision Petition No. 22/2015 which came to be decided on 28.03.2018 by this Court as follows:- “ I have considered the rival submissions made by the learned counsel for the parties. In terms of provisions of Order 41 Rule 3-A of CPC, except for sufficient cause, the court shall not make any order for stay of execution of decree. In other words, until and unless the delay in filing appeal is condoned, no order staying the execution of decree could be passed, however, appellate court is complete violation of provisions of Order 41 of CPC by means order dated 14.11.2014 stayed the execution of the decree and thereafter by virtue of order dated 16.05.2014 condoned the delay. Said course of action is not permissible under law, I view of mandate of Order 41 Rule 3-A CPC, therefore, impugned order dated 14.11.2014 and 16.05.2014 are hereby quashed. The lower appellate court is directed to ascertain the fact whether or not application for condonation of delay w filed along with the memo of appeal 4 and if filed shall consider and decide the same in terms of Provisions of Order 41 Rule 3-! And thereafter shall proceed to deal with appeal I accordance with law. The petitioners shall be at liberty to raise the objections with regard to locus of respondent to file appeal. With the aforesaid directions, this revision petition is disposed of. Trial court record be send back”. 9. The plaintiffs/petitioners however instead of contesting the appeal yet maintained another petition being OWP No. 579/2019 before this Court, which came to be decided on 22.02.2021 by directing the executing court to proceed and conclude the execution proceedings in accordance with law expeditiously. 10. In the meantime, the appellate court in compliance to the order passed by this Court in CR No. 22/2015 supra on 28.03.2018, examined the record in order to ascertain as to whether an application for condonation of delay was accompanied with the memo of appeal as also whether the appellant in the appeal is competent to file the appeal and the appellate court in terms of the impugned order after examining the record inasmuch as after hearing the parties concluded in the impugned order that the appeal have had been accompanied with an application for condonation of delay, however, there has been no presentation recorded on the said condonation of delay of application seemingly due to the clerical mistake though in the memo of appeal, the appellant had averred that the same is 5 accompanied by an application for condonation of delay, besides observing that a stay to the execution of decree had also to be ordered on 14.11.2014, which , however, came to be set aside by the High Court on the ground that before granting stay of the execution of the decree, application for condonation of delay has to be considered. 11. The petitioners herein have questioned the impugned order in the instant petition on the following grounds:- A) Once the superior Court has dealt with the matter, in a civil revision petition, and set aside the earlier order, allowing the bulleted/controversial/non- existent application for condonation of delay purported to have been filed along with the member of appeal, not wealt with at the time of granting city of the proceedings in the court below, has now been discovered, in this lapse is labelled as a clerical mistake. The fact of the matter is that, it is a duty of the court, it is registry ministerial staff and the presiding officer to check as to whether the appeal was time and seek orders on the application for condonation of delay. The observation of the court that, this was a clerical mistake is not sustainable. It has also not been shown as to whether any inquiry was conducted in the matter, and the person is responsible for clerical mistake happening pinpointed and taken to task. Simply saying that, the application for condonation of delay was accompanying the suit, is not based on any fact finding enquiry, or report from the office. It is only the persistence and persuasion of the counsel for the appellant, that undue influence has been exercised on the existing 6 officer to pass such order. This order being not based on any sound reasoning is liable to be set aside. B) The order is bad in law on the face of it, as an observation has been made that since, the Appellant No. 1, [Director Local Bodies Kashmir] has been asked to satisfy the decree, therefore, it will be deemed that he has been allowed to file the decree. This kind of logic and reasoning is again not understood. Firstly, the appellant No. 1 is not a party in the suit below, and is not a judgment debtorle, therefore he can never be asked to satisfy the decree. Therefore, the argument sought to built up, is without any basis and is against record. Once a party was not participating in the proceedings before the code below, he can only file an appeal after taking leave of the court formally, explaining his locus standi and the manner in which he is aggrieved of the order. Reasons for not joining investigations in the code below, if you have any stake in the litigation. Verily the fact that collector had asked him to arrange funds for the satisfaction of the decree in his official capacity does not make another person aggrieved, which can enable him to seek leave of the court for filing the appeal. Seeking leave of the court is not only a mere formality, but has its a legal consequences. Therefore formal application should have been filed before the court, showing his stand, and only then he could be allowed to participate in this appeal. The order of the district is bad in the face of the record and is liable. C) What is the High Court while delivering its judgment in CR No. 22/2015, has set aside the order passed by the District Court hey all 16.05.2015, do you live with all the issues, sort to be settled in the present 7 impugned order, the same issues cannot be allowed to be tell again in this manner. Therefore, by passing this order, on the issues with already have been decided by the High Court, the court below has caused an error and a consequent failure of justice. The order appears to be outcome of non application of mind, it has been pause it 2 to undue influence exerted by the respondents being with functionaries of a mighty state, who don’t like your expect the rule of law. It is only the institution of judiciary, which can protect the rights and interests of innocent citizens, against the highhandedness and arbitrary exercise of powers bite me functionaries of stat. Here is a case, where the property land of the petronas has been acquired compulsorily, way back in the year 1962, and since then, he is old aged senior citizens, are fighting for their rights, exhausting all their resources, yet they presiding officers of the court below has not appreciated the real controversy involved in the case, and they supported the appellants how to delay and defeat the release of fair compensation in their favour. D) That while deciding an application for condonation, the court has to observe that they are well sufficient grounds justifying the filing of the appeal on a belated date or point of time. Let us though whisper about the circumstances, on which the delay of condonation was sought and granted. Even there is not a word indicating the satisfaction of the court, or any justifiable ground for condoning the delay. The order being arbitrary is liable to be set aside. When the court has already decided the matter and clarified the point that until and unless the appellate court decides the question of condonation, there does not 8 exist any appeal or in other words no appeal can be entertained by the appellate Court. The appellants had not been able to convince the appellate court about the existence of any application for condonation of delay filed at the time of filing the appeal. The appellants are also not been able to satisfy the court about the locus standi of the appellants in the matter, who were not parties before the trial court of sub judge. Since there is no bar or order of restraint passed by any court and technically no appeal is pending in the appellate court, as the appellant has either established his locus standi in the matter, nor has application for condonation of delay, the executing court has not bar in carrying forward the proceedings according to law. If no such objection has been taken to the proceedings by the opposing defendants, but the executing court is not taking the proceedings to the logical conclusion in the face of Hon’ble High Court supervising the matter, while exercising jurisdiction under Article 227. E) That the ld. District Judge has failed to differentiate that the appeal was filed by a party “Director Local Bodie” who was not arrayed as a part before Ld. Sub Judge. The appeal was filed by an incompetent person therefore, was not entertainable. That the Ld. District failed to differentiate that the appeal was time barred and the appellants were required to seek a condonation of delay by showing sufficient cause. No such application has been ever filed by the appellants and the question of limitation has never been decided. It is very settled position of law that a party cannot be allowed a premium for its default. The Ld. District Judge should have considered the question of delay in case the party had filed any 9 application for that purpose. In absence of such plea the ld. District Judge could not proceed locus standi of the appellants. F) That the fact that respondents in the appeal “petitioner herein” had filed their reply and had taken the objection of delay and limitation in the first instance. But the Ld District Judge in utter disregard and abuse of authority and power has failed to differentiate this point and has not bothered to decide the question of delay and limitation. In this way a serious prejudice and failure of justice has occurred for which the indulgence of the Hon’ble High Court is sought in this petition. G) That the irregularities, bias and partisan approach adopted by the presiding officer is manifest from the order passed by him on 14.11.2014, in some application when the case was already heard on 13.11.2014 without any notice to the other side is a clear example of abuse of authority and process of Court that has not only caused failure of justice but has eroded a faith of common man in the process of justice and judiciary institutions. H) That the case was not entertained by the District Judge and was in the process of summoning only as the last order reads that respondent No. 12 & 13 were still awaited and file was kept pending awaiting their appearance. It is not understood as to how cold Ld. Presiding Officer pass such an order when almost all the parties were participating and were represented by their counsels therefore, the case is fit for interference by the Hon’ble High Court while exercising its powers of superintendence. 10 12. Response to the petition has been filed by the respondents herein, wherein the petition is being opposed on the premise that the same is not maintainable and that the order under challenge has been passed by the appellate court validly and legally. Heard learned counsel for the parties and perused the record. 13. According to Mr. Arsahd Andrabi, learned counsel for the petitioners herein, the appeal supra preferred by the appellant before the appellate court was never accompanied with an application for condonation of delay and that same by manipulation came to be filed after the filing of the appeal. Mr. Andrabi, would further contend that the appellant before the appellate court is not a person aggrieved and, as such, was not competent to file the appeal against the judgment and decree dated 2012.2012. Mr. Andrabi, would lastly submit that the appellate court otherwise upon entertaining the appeal ought not to have passed an order of stay qua the execution of decree when the appeal was time barred and that too without deciding the condonation of application first. 14. Insofar as the aforesaid first plea of Mr. Andrabi qua the filing of appeal initially without condonation of delay application and having been filed later by manipulation and competence of the appellant to maintain the appeal as “person aggrieved” is concerned, perusal of the record available on the file would 11 manifestly tend to show that the appellate court as far back as on 16.05.2015 while considering application for condonation of delay accompanying the appeal has specifically returned a finding not only qua the competence of the appellant to maintain the appeal as a person aggrieved but has also simultaneously allowed the application for condonation of delay subject to the payment of costs of Rs. 7000/- to be payable by the appellant therein to the counsel for the private respondents, petitioners herein. 15. A deeper and closer examination of the order dated 16.05.2015 manifestly reveals that the plaintiffs/petitioners herein were present before the court on the said date and had opposed not only the condonation of delay application, but also the maintaining of appeal by the appellant as “person aggrieved”. For the sake of brevity and clarity the operative portion of order dated 16.05.2015 is extracted and reproduced hereunder:- “The court is of the considered view that the appeal has raised points which require consideration. The appellant is allowed to file the appeal as it is required to satisfy the decree and is the party aggrieved of the decree. The application for condonation of delay is allowed on the ground that the appeal requires to be disposed of on merits. The appellants is burdened with costs while allowing the application and are assessed at Rs. 7000/- to be paid by the appellant to the counsel for the private respondents as 11.02.2015. In case of default the application shall be deemed to have been dismissed. The appeal shall come up for 12 hearing on 11.06.2015 subject to the condition that the costs are paid by the next date of hearing. The record of the trial court is already before the Court. 16. The plaintiffs/petitioners herein in view of the aforesaid factual position obtaining in the matter seemingly have mis-represented, concealed and suppressed all these material facts before this Court while maintaining the revision petition CR No. 22/2015 before this Court. 17. Be that as it may, this Court in order dated 28.03.2018, supra while deciding the aforesaid revision petition CR No.22/2015 required the appellate court on the basis of the case set up by the plaintiffs/petitioners herein to ascertain as to whether application for condonation of delay was filed along with the memo of appeal and if filed it shall consider and decide the same in terms of the provisions of Order 41 Rule 3-A and thereafter shall proceed to deal with the appeal in accordance with law, as a consequence whereof, the appellate court in terms of the impugned order has ascertained that the application for condonation of delay was accompanied with the appeal, however, had not been diarized, but had been considered and allowed, on 16.05.2015, which order however, came to be quashed by this Court in terms of order dated 28.03.2018, passed in Revision Petition No. 22/2015 and that in terms of the said order the appellant had been authorized to maintain the appeal as person aggrieved. 13 18. In presence of the aforesaid observations and findings made and recorded by the appellate court pursuant to the directions passed by this Court, the impugned order cannot be said to be legally factually invalid. 19. For what has been observed considered and analysed hereinabove, this Court in not inclined to exercise either discretionary extra ordinary jurisdiction under Article 226 of the Constitution of India or else supervisory jurisdiction under Article 227 of the Constitution of India as is being invoked by the petitioners in the matter. 20. Resultantly, the petition fails and is accordingly dismissed. 21. Dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR 05.03.2025 “S.Nuzhat”