Party Seeking Condonation Of Delay In Filing Appeal Against Ex-Parte Decree Not Required To Explain Its Absence During Trial: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has recently held that the seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is explanation for period of delay which runs as per the Limitation Act.

The observations were made by Justice Vinod Chatterji Koul while hearing a civil second appeal in terms of which the appellant had thrown a challenge to the judgment passed by District Judge, Kulgam in terms of which it had dismissed the application seeking condonation of a delay of 24 days. As a consequence, the appeal also got dismissed as the court below held it to be time barred.

The court after perusing the material on record, noted that First Appellate Court (District Judge, Kulgam) has taken into account the absence of appellant before the Trial court as according to First Appellate Court the appellant has not given sufficient reasons that prevented him to appear before Trial Court during pendency of the civil suit till it culminated in passing of ex parte decree.

In its bid to answer the question as to “whether the seeker of condonation of delay was required to explain the period of his absence during the trial of the suit”, Justice Koul observed that First Appellate Court should have been alive to the position that an application seeking condonation of delay is to be decided while taking liberal view subject to explanation given by appellant more particularly when even there is not any inordinate delay.

Elaborating further on the subject Justice Koul elucidated that the appellant was to explain the delay which occasioned in not filing the appeal within the limitation period after passing of the decree and judgment, further adding,

"However, the First Appellate court has passed order impugned rejecting the application by holding that no sufficient cause has been shown by the appellant for his absence before the Trial court for the period ex parte proceedings were initiated against him till passing of the judgment,"

Pointing out the perversity in the judgment of the First Appellate Court the bench further added that law provides that delay is to be explained for the period beyond the period of limitation prescribed and the limitation in this case would run from the date of passing of the decree and not from any date prior to passing of the same.

The court also noted that the applicant-petitioner was therefore, was therefore required to explain what occasioned the delay after passing of the decree, which has been Sufficiently explained in the application supported by an affidavit.

The bench said that the First Appellate Court instead of limiting consideration to that period has gone beyond the provisions and has taken into account the period of absence before the Trial court.

"The seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is the period of delay which runs as per the Limitation Act.", Justice Koul concluded while allowing the petition.

Case Title: Bashir Ahmad Dar Vs Shameema & Ors.

Citation: 2023 LiveLaw (JKL) 46

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