Decided on December 08,1999

Ab Khaliq Dar Respondents


- (1.) IN this application, the applicants have made a prayer to condone the delay of eight months and seven days for filling the appeal against the order dated 21 -07 -1998 passed by the learned District Judge, Srinagar. The factual matrix of the case is that on 09 -02 -1998 this court transferred arbitration proceedings (No. 284/99 titled Abdul Gaffar Dar Vs. State of J&K and others) for disposal to the court of learned District Judge, Srinagar with a direction to the counsel of the parties to appear in the transferee court on 18 -03 -1998. On this date, the record of the arbitration proceedings did not reach the office of the transferee court, but is was received on March 20, 1998. This transferee court, without any notice either to the parties or to their counsel, fixed the next date for 27 -04 -1998, on this date the counsel of the non -applicant herein (Mr. M.A. Dar) appeared and the court waited for the presence of the applicants by adjourning the case for 04 -06 -1998. On the said day, the arguments in part of the counsel of the non -applicant were heard and the next date was fixed as 06 -07 -1998. On this date, the remaining arguments of Mr. M.A. Dar, Advocate were heard and the case was slated for orders on 21 -07 -1998 when the impugned order was passed whereby the award of the Arbitrator was made the Rule of the court. The non -applicant filed the execution proceedings (No. 6/98) before the learned District Judge, Srinagar. Notices were issued to the applicants judgment debtors, but nobody appeared on their behalf. Accounts bearing numbers 2210, 4210 and 2065 maintained by the applicant, Executive Engineer, Hospital Division, Soura in the Sub -treasury, Khanyar and Saddar Treasury, Srinagar respectively were attached. The applicants have pleaded that on June 19, 1999 they got the knowledge about the proceedings and challenged the order dated 21 -07 -1998 through the medium of the present appeal which is accompanied by this application.
(2.) THE ground on the basis of which condonation of delay is prayed is that the learned District Judge on the receipt of the record from the court (on 20 -03 -1998) ought to have issued the notice to the applicants or their counsel and then proceeded in the proceedings. In the absence of adoption of such procedure, the limitation for filing the appeal starts from the date of knowledge.
(3.) THE non -applicant, in his objections has pleaded that it was the duty of the applicant to enquire about the proceedings before the transferee court even after March 18, 1998. That the trial court had given sufficient time to the applicants for appearance as after the receipt of the record from 20 -3 -1998, the case was adjourned to March 31, 1998, and April 27, 1998 when it was directed that in the absence of the applicants, the case would be heard on the next date i.e. on 4.6.1998, part arguments were heard on 4.6.1998 and they were concluded on 6.7.1998. It is denied that the applicants got the knowledge on June 19, 1999 but pleaded that they were served notices of execution proceedings for 8.10.1998 and 12.11.1998. Heard the arguments. The counsel of the applicants has reiterated the grounds of the application in his arguments and laid stress that the transferee court on March 20, 1998 was required to issue notice to the applicants for the next date (31.3.1998). Mere postponement of the proceedings for 31.3.1998 was not suffice. The second date fixed in the case was 27.4.1998 when it was ordered that the arguments would be heard on the next date i.e. on June 4, 1998. Partly, the arguments were heard on the said date which were concluded on 6.7.1998. The counsel has also contended that the applicants got the knowledge of the proceedings on June 19, 1999 when notice was received by the applicant, Assistant Executive Engineer, and immediately, thereafter, on 28.6.1999 he filed this application alongwith the appeal. The Government functions like an impersonal machinery and certain amount of latitude by the Courts is not impermissible. In support of this contention he has cited the case of State of Haryana Versus Chander Mani  (AIR 1996 SC 1623). He has also contended that in the case of State of U.P. and others Versus Haresh Chandra  (AIR 1996 SC 2173) the Apex Court condoned the delay of 480 days in preferring the Special Leave petition. ;

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