MOHD SHAFI MALIK Vs. FIL INDUSTRIES LTD

JUDGEMENT

(1.) The Appellant seeks to assail an ex parte judgment and decree dated 27-4-2006 passed by learned Ist. Addl. District Judge Srinagar in Civil Suit titled FIL Industries Ltd. v. Mohammad Shafi Malik after a delay of 1063 days. The Appellant conscious that the appeal is time barred, has filed instant application for condonation of delay. The facts are as under:

(2.) The delay of 1063 days in filing the appeal against the ex parte judgment decree dated 27-4-2006 is sought to be explained on the ground that the Appellant because of his cardiac ailment could not contact his lawyer and was not in a position to appear before the trial Court. The Appellant claims to have become aware of the ex parte judgment/decree only when the Appellant received notice in execution proceedings instituted on 29th of October 2007. The Appellant claims to have unders one "series of medical diagnostic treatments" and to have on receipt of notice in execution proceedings, telephonically instructed his counsel to file an appeal against the ex parte judgment and decree. It is pleaded that the Appellant could not personally approach his counsel to put his signatures on the memo of appeal and resultantly no steps were taken to file the appeal immediately after the receipt of the notice. It is averred that the Appellant is the only male member of his family and the women folk being pardanasheen, could not attend the Court or approach the counsel. The Appellant has enclosed medical prescriptions and laboratory reports.

(3.) The application for condonation of delay is resisted inter alia on the grounds that the averments made in the application are factually incorrect inasmuch as the Appellant caused appearance before the trial Court, was set ex parte and the ex parte proceedings were set aside on payment of Rs. 300/- as costs which the Appellant never paid.. It is insisted that the absence of the Appellant before the trial Court was voluntary, deliberate and intentional and the story of cardiac ailment sought to be set up, was false and bereft of any substance. The Respondent has pointed out that the Appellant absented himself from the proceedings from 12-3-2004 and the so called cardiac ailment on own showing of the Appellant, surfaced in the year 2006 leaving the period from 2004 to 2006 unexplained.