Decided on May 02,1986

GIAN DEVI Appellant
Sub Judge (C J M ) Jammu Respondents


- (1.) THIS is a petitioner from under sec. 104 of the constitution of Jammu and Kashmir arises in the following circumstances: -
(2.) RESPONDENT No. 4 filed a civil suit in the court of District Judge, Jammu which came to be transferred for its disposal in accordance with law to the File of Munsiff, Jammu After trial, the suit was decreed vide judgment and decree dated November, 9 -1984. Against the judgment and decree passed by the Munsiff, an appeal was filed by the petitioner before the District Judge which was transferred for disposal to the Addl. District Judge, Jammu. The appeal was registered. During the course of arguments an objection was raised by the decree -holder, respondent No. 4, through his counsel that an appeal against the judgment and decree passed in the suit where valuation is less than Rs. 500/ - to the Sub Judge (C.J.M.) and not to the District Judge. This objection was conceded by the petitioner and vide order dated 16 -2 -1985, the Addl. District Judge, held that the appeal did not lie to that court and that the same "appears to have been transferred to the court by the District Judge due to oversight." The appeal was therefore, sent back to the District Judge for appropriate orders. When the appeal came up for appropriate order before the District Judge, Jammu, the counsel for the decree holder drew the attention of the learned District Judge to the notification dated 8 9 -1969 and learned counsel for the petitioner herein conceded that he ought to have filed the appeal before the Sub Judge (C. J. M) Jammu, who in view of the notification was empowered to hear appeals from all or any of the orders passed by the Munsiff in original suits the valuation whereof was upto Rs. 500/ - Vide order dated 4 -3 -1985 passed in presence of the counsel for both the parties, the learned District Judge Inter -alia observed : - " Since, sub Judge (C. J M), Jammu, is competent to hear this appeal, as such the appeal is returned to the counsel for the appellant and he is at liberty to produce the same be ere the learned Sub Judge (C. J. M) Jammu, if he so chooses." Though the order for the return of the appeal was passed on
(3.) -3 -1985, the same was actually collected by learned counsel for petitioner on 8th of March, 1985, and was filed before the Sub Judge (C. J. M) on 9 -3 -.985 Alongwith the appeal, an application seeking condonation of delay in the presentation of the appeal before the learned Sub Judge (C. J. M) was a so filed by the petitioner and a notice was issued to respondent No. 4 in the said application. The application was resisted. The learned Sub Judge (C. J. M) did not find and sufficient cause to have been made mil for condoning the delay and held the appeal filed by the petitioner as time barred After dismissing the application for condonation of delay, the appeal was dismissed by the learned Sub Judge (C J. M) vide his judgment and decree dated 29 -3 -1985. The petitioner, therefore, filed the present petition under section 104 of the constitution of J & K on 11 -7 -1985 According to learned counsel for the petitioner the learned Sub Judge (C J M) fell in error in refusing to condone the delay in the filing of the appeal, when the delay was not attributable to any negligence on the part of the petitioner herein but had occasioned because the appeal was handed back to the petitioner on 8 -3 -1985 and not on 4 -3 -1985. He further asserted that as a matter of fact, there was no delay at all and the finding that it was barred by time was erroneous. The petitioner has, therefore, prayed that the judgment and decree of the learned Sub Judge (C. J. M) dated March 2 -9 -1985 be set aside and be directed to re -admit the appeal and restore it to its original number and dispose it of on merits in accordance with law. Notice -was issued to the respondents to show cause as to why the petition be not admitted, respondent No. 4, the contesting respondent -decree holder, has submitted his objections only resisting the petition on merits but he has also raised a preliminary objection to the maintainability of the present petition.;

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