Ghulam Nabi Kuchay and Ors v. Hilal Ahmad Kuchay and Ors

ORDER

19.09.2025

¶01A civil suit on File No. 34/Civil of 1985 was commenced by a set of plaintiffs led by one-Rasool and three others against another set of defendants led by Mohammad Kuchay and others before the Court of Munsiff, Pulwama.

¶02Said suit came to be decreed in terms of judgment and decree dated 15.04.1993 which is said to be based upon a purported compromise made between the plaintiffs and the defendants.

¶03Out of array of the defendants in the said civil suit, two defendants namely, Khaliq Kuchay and Aziz Kuchay sons of Ramzan Kuchay filed an application on File No. 19/Misc on Regular

22.06.2002 for seeking to set aside the ex-parte decree dated

15.04.1993.

¶04Said application of said two defendants came to be adjudicated on merits and dismissed vide an order dated

20.10.2018 by the Sub Judge, Pulwama to whom the matter had been later transferred.

¶05In the intervening period, there was a round of litigation which reached this Court in the form of civil revisions about which the reference came to be made by the Court of learned Sub Judge, Pulwama in its order dated

20.10.2018.

¶06The order dated 20.10.2018 passed by the Court of Sub Judge, Pulwama dismissing the application under Order 9 Rule 13 of the Jammu and Kashmir Code of Civil Procedure Svt., 1977 being amenable to an appeal under Order 43 Rule 1 of the Jammu and Kashmir Code of Civil Procedure Svt., 1977 came to be assailed by the defendant-Aziz Kuchay joined by the legal representatives of co-defendant-Khaliq Kuchay.

¶07These two applicants had filed an appeal under the Jammu and Kashmir Code of Civil Procedure Svt., 1977 before the Court of Principal District Judge, Pulwama on File

No. MP/16 on

16.03.2019 to assail order dated

20.10.2018.

¶08However, the appeal was found to be time-barred, involving a delay of 58 days (i.e., 1 month and 18 days).

¶09An application for condonation of delay had been made which came to be rejected by the Court of Principal District Judge, Pulwama, vide an order dated 04.09.2023, holding therein that the applicants i.e., Aziz Kuchay and three others who are the legal representatives of Khaliq Kuchay are not able to convince the Court about the condonation of delay and consequently the appeal also stood dismissed.

¶10The applicants relied upon the disturbed law and order situation in the area as the cause for the delay in filing the appeal within time as well as the illness of the applicant No. 1-Aziz Kuchay.

¶11It is against the said outcome in the form of order dated

04.09.2023 of the Court of Principal District Judge, Pulwama that the present revision petition came to be preferred by the legal representatives of Aziz Kuchay joined by the legal representatives of Khaliq Kuchay. The original applicants in the application were only two i.e. Khaliq Kuchay and Aziz Kuchay sons of Ramzan Kuchay. Their

legal representatives appear in this revision petition as petitioners No. 1 to 4, 15, 16 and 17.

¶12However, the rest of the petitioners are the legal representatives of the other defendants who at no point of time ever agitated any grievance against the ex-parte decree dated 15.04.1993 of the learned Munsiff Pulwama and are therefore deleted from the array of parties, not being necessary parties. They are to be read as proforma respondents, along with the proforma respondents numbered serially from No. 7 to 13 in the array of the respondents.

¶13The contesting respondents in the present revision petition are respondents No. 1 to 6. Respondents No. 1 to 4 are the legal representatives of the plaintiff No. 1-Rasool Kuchay whereas the respondent No. 5 himself is plaintiff No. 2 and the respondent No. 6 is plaintiff No. 3 of said original suit.

¶14In the revision petition, this Court is to examine the legality of the reasoning given by the Court of Principal District Judge, Pulwama in rejecting the application for condonation of delay filed by the four applicants.

¶15Though the reasoning given by the Principal District Judge, Pulwama can be said to be probable one but then the

routine human life has contingencies which cannot be expected to be explained in a straitjacket manner, whereby a person who pleads illness as a cause contributing to the delay should be required to prove the same by medical evidence, particularly when the person is a villager who struggles with their recovery from the illness by grit and determination rather than first rushing to seek medical attention unless and until the illness is reportedly life-threatening.

¶16This Court cannot lose sight of the fact that the applicant No. 1-Aziz Kuchay joined by his brother-Khaliq Kuchay being the original applicants had pursued their matter all along before the Court below till passing of order dated 20.10.2018. Surely, Aziz Kuchay cannot be assumed to have invested his lifetime in pursuing the matter before the Court below just for the sake of losing right of appeal due to a delay which was not substantial but only 58 days, during which the infamous Pulwama bomb blast incident in February 2019 occurred, long disturbing life in the entire Kashmir Valley in particular very seriously.

¶17However, if Pulwama incident would not have taken place, then perhaps the length of delay would have been

much shorter for which the explanation given was the illness of the applicant No. 1-Aziz Kuchay.

¶18Though the learned Principal District Judge, Pulwama reckoned the plea of illness of applicant No. 1 to be not trustworthy but when this Court gets confronted with the fact that at the time of the institution of the present revision petition in January 2024 that is within a period of 4 months from the date of passing of impugned order dated

04.09.2023, said Aziz Kuchay had demised, this confirms fact that he actually was suffering some sort of ailment which was adverted to in the application though not supported by any medical record but nevertheless led to the demise of the applicant No. 1-Aziz Kuchay thereby bringing his legal representatives on the scene to come up with the present revision petition joined by legal representatives of applicant No. 2-Khaliq Kuchay.

¶19In the light of the aforesaid, this Court believes that the Court of Principal District Judge, Pulwama perhaps applied the rigor of sufficient cause too strictly, thereby non-suiting the applicants in their appeal which, if heard on merits, would perhaps have settled the controversy one way

or the other related to the ex-parte decree and judgment dated 15.04.1993 of the learned Munsiff Pulwama.

¶20In the given facts and circumstances of the case, this Court is inclined to interfere with the order dated 04.09.2023 of the Principal District Judge, Pulwama by setting it aside and allowing the condonation of delay application in preferring the appeal against the order dated 20.10.2018 of Sub Judge Pulwama.

¶21Let the said appeal be recalled and diarised by the Court of Principal District Judge, Pulwama and heard on merits and disposed of by or before 30th of November, 2025. Any extension of time, if required for adjudicating the matter within the time given, shall be solicited by the Principal District Judge, Pulwama by laying a proper application to that effect before this Court, otherwise, the timeline is meant to be honored.

¶22Disposed of.

(Rahul Bharti)

Judge

SRINAGAR

19.09.2025 Bisma Jan.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CR 1/2024 CM(123/2024) CM(124/2024) CM(125/2024). GHULAM NABI KUCHAY AND ORS. …Petitioner(s) Through: Mr. M. Ayoub Bhat, Advocate. Ms. Mahjabeen, Advocate. VERSUS HILAL AHMAD KUCHAY AND ORS. Through: Mr. Baber Bilal Malik, Advocate. …Respondent(s) CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE.