P L DUA Vs. HARDUTT SHARMA
HIGH COURT OF JAMMU AND KASHMIR
P L Dua
Click here to view full judgement.
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
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
(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.
Sd/ - Distt. Judge.;
Copyright © Regent Computronics Pvt.Ltd.