Decided on May 01,1986

P L Dua Appellant
Hardutt Sharma Respondents


ANAND, J. - (1.) THIS case has a chequered history, but it is not neces ­sary for us to go into the complete history of the case and we shall only advert to such relevant facts as are necessary for dealing with the questions raised in the revision petition.
(2.) THE respondent, Shri Hardut Sharma, filed a suit in the Court of Sub Judge (C.J.M.) Jammu for declaration and specific per ­formance of contract against M/s Jai Kishan Sham Lal and Sons arraying S/Shri Jai Kishan and Sham Lal as defendants. The suit was registered as Civil suit No. 144 of 1919 and a consent decree was passed in favour of the respondent herein. Aggrieved by the consent decree, the petitioners -herein filed a suit for the cancellation of he consent decree in the court of the sub Judge, (C. J. M,) Jammu. That suit was decreed by the trial court on 31st of March, 1983, in favour of the plaintiffs -petitioners. The respondent thereupon filed an appeal against the judgment and decree dated 31 -3 -1983 on 1st of April, 1983 before the District Judge. Jammu. The memo of appeal was not accompanied by any certified copy of the decree or the judgment appealed against but alongwith the memo of appeal, the respondent had filed an affidavit stating therein that the judgment had been announced by the Sub Judge (C. J. M.), on 31st of March, 1983, and in para 2 of the affidavit it was deposed: - œI solemnly affirm that I have made an application for grant of copy of the judgment and decree on urgent fee on 1st. April, 1983, and that will take time for the grant of this copy For facility of reference, hereafter, we shall refer to this affidavit as Affidavit -i). On the same day, another application was filed alongwith the appeal with the prayer that the production of the copy of the judgment and decree be dispensed with and the appeal entertained. Para No. 1 of that application reads thus: - œIn the above said case, judgment was announced by the learned trial court presiding officer on 31st of March, 1983 at 4. P.M., but the copy of the judgment has not yet been granted to the appellant though he had made an application for grant of the same on urgent fee. As a matter of urgent nature and respondent will make hay while the sun shine and immediately rush to the depot, forest and enter with the time and would try to deal or sell with their own ma ­nner which will defeat the purposes of the appeal. (Here -in -after referred to as Application -1). The aforesaid application/was supported by an affidavit (here -in -after referred to as affidavit -2) para 1 whereof reads as follow: - œ(1) I solemnly affirm that the contents of the application accompanying this application have read under my instructions and are correct.
(3.) IN the subsequent paragraphs of the affidavit -2, it has been stated that the respondents are not permanent residents of J&K State and that a stay order be granted because prima facie, their appeal is strong and the balance of convenience is also in their favour. Yet, another application (hereinafter referred to as application -2) under Order 41 R 5 C. P. C. was filed on the same day i.e. 1.4.1983 praying for stay of the execution of the decree of the trial court and for restraining the respondents (petitioners herein) for cutt ­ing or dealing with the timber wherever lying, whether the Jammu depot or in the Forest compartments 16 and 18 Ramban Division or in transit. This application was also supported by a separate affi ­davit (hereinafter referred to as affidavit -3), when appeal was presen ­ted before the learned District Judge, he made the following orders: - œ1 -4 -83. Appeal has been presented by S.P. Gupta, Advocate, It shall be registered. Shri V.K. Chopra Advocate has taken notice on behalf 1, 4, 5, 6. The other respondents 2 and 3 shall be summoned for the next hearing. At the request of the parties, the case is fixed for 6 -4 -83. Announ ­ced. Sd/ - Distt. Judge.;

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