UNIVERSITY OF KASHMIR THROUGH REGISTRAR Vs. AB MAJID BABA
LAWS(J&K)-1999-2-16
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 03,1999

University Of Kashmir Through Registrar Appellant
VERSUS
Ab Majid Baba Respondents

JUDGEMENT

- (1.) PLAINTIFFS Civil Original SuitNo.62of1991 (respondents herein) was tried by Sub Judge, (Judge Small Causes Court) Srinagar. The suit of plaintiffs for declaration and re -designation as Library Assistants instead of Professional Assistants and their promotion subject to eligibility with others as Assistant Librarians was decreed of 13 -10 -1993. Against this judgments and decree of 13 -10 -1993 in said Civil Original Suit 62/91, on the file of Sub Judge, Judge Small Causes Court, Srinagar, appeal alongwith application for condonation of delay was filed before the District and Sessions Judge Srinagar. On assignment, the IVth Addl. District and Sessions Judge, Srinagar vide order dated 6 -9 -1994 dismissed the application and refused to condone the delay for failure to prove sufficient cause there for and alongside the Appeal was .also dismissed. Against this judgment of 6th August, 1994, the University -defendants before the trial court respondent before the Appellate court has filed the revision. The impugned order Has been assailed on the ground that the court below failed to give certified copy to the petitioner from 24 -11 -1993 to 8 -2 -1994 and the period has not been excluded and thereby it is a case of exercise of jurisdiction with material irregularity, leading to failure of justice. Besides, as the case has raised an important question of law. The petitioner has been deprived of the opportunity to assail the judgment on facts. Respondents have not appeared despite notice.
(2.) COUNSEL for the petitioner has been heard. The appellate court has given weighty reasons for coming to the conclusion that the petitioner failed to make out a case for condonation of delay.
(3.) ON record, it is made out that the petitioner applied for the copy of judgment and decree dated 13 -10 -1993 on 24 -11 -1993 and the copy was ready for distribution on 26 -11 -1993 itself. But as the fee for preparing the copy was deposited only on 8 -2 -94, therefore, the copies were distributed on 8 -2 -94 itself. In the first appellate court, witnesses have been examined and on examination of the evidence and on examination of record, the court has come to the conclusion that the petitioner could at the best claim three days for exclusion of the time period required to obtain an copy. When this period is adjusted, still the appeal before the Appellate court is barred by 32 days. No reason or cause is put -forth in the application before the court below for seeking condonation of this period. An omnibus recital in the application that the petitioner could not get the copy from 24 -11 -1993 to 8 -2 -1994 would hardly suffice to serve as sufficient cause to seek condonation of delay for filing the appeal beyond prescribed time The order of the appellate court is based on the appreciation of evidence, perusal of record and on due consideration of the view points of the parties on hearing. The conclusion reached at by the Court below on facts cannot be re -opened in the revision in disguise. After -all, the revisional court is not sitting as appellate court to hear the matter. The order has been passed within jurisdiction after appreciation of evidence on hearing. The legal principles, having bearing on the question of condoning or refusing to condone the delay in an appeal filed beyond time have been considered and applied to the facts and circumstances of the case. It is not a case of exercise of jurisdiction, not vested in the court below, nor is it a case of failure to exercise jurisdiction vested in the court below, nor is it a case of acting in exercise of jurisdiction illegally or with material irregularity. No facts or circumstances have been brought to the notice of this court to focus on any question having a bearing on failure of justice in this case. The order appears to have been passed on exercise of jurisdiction in judicial manner within parameters of law.;


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