Waheed Khan vs Hardev Singh Jamwal on 30 March, 2026

    0
    48
    ADVERTISEMENT

    Jammu & Kashmir High Court

    Waheed Khan vs Hardev Singh Jamwal on 30 March, 2026

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU
    
    MA No. 04/2026
    CM No. 1393/2026
    CAV No. 658/2026
                                                         Reserved on: 10.03.2026
                                                         Pronounced on: 30.03.2026
                                                         Uploaded on: 01.04.2026
    
                                                        Whether the operative part or full
                                                        judgment is pronounced: Full
    
    Waheed Khan, Age 54 years,
    S/o Late Sh. Khadam Hussain Khan,
    R/o House No. 787/EP, Mohalla Ustad,
    Tehsil and District Jammu                                              .....Appellant(s)
    
                        Through: Mr. G S Thakur, Advocate
    
                         Vs.
    Hardev Singh Jamwal,
    S/o Late Sh. Chamail Singh Jamwal,
    R/o Behind Toll Post,
    Opp. Patwari Office, Nagrota,
    Tehsil Nagrota, District Jammu                                      ..... Respondent(s)
    
                        Through: Mr. Dharamvir, Advocate
    
    Coram:    HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
    
                                       JUDGMENT
    

    01. The appellant, through the medium of the instant Civil Miscellaneous

    Appeal has called in question the order dated 21.02.2026 passed by the

    SPONSORED

    learned Additional District Judge, Jammu in Restoration Application No.

    12/2024 by virtue of which the said application has been dismissed by

    holding that the sufficient cause has not been shown.

    02. While the matter was being heard, the learned counsel for the appellant has

    apprised this Court that the appellant has filed a civil original suit under the

    Specific Relief Act, 1963 for a decree of specific performance of contract of

    Agreement to Sell dated 18.11.2019 by directing the respondent to perform
    2 MA No. 4/2026

    his part of the contract by registering the Sale Deed in favour of the appellant

    in respect of plaint schedule property i.e Restaurant under the name and style

    of as ” BSJ” constructed over the land measuring 10 marlas falling under

    Khasra No. 1209, Khata No. 449-451 and Khewat No. 26 situated opposite

    IIT Jagti, Nagrota, Tehsil Nagrota, District Jammu. The suit though was

    originally filed before the Court of learned Special Judge Passenger Tax,

    Jammu, who returned the said suit to the learned District Judge, thereafter,

    transferred the same before the Court of learned Additional Judge, Jammu

    for its disposal.

    03. It has been alleged in the instant appeal that the respondent during

    pendency of the said suit, further transferred the suit property which was a

    restaurant, with the motive to defeat the rights of the appellant which

    constrained the appellant to file the application for appointment of a

    receiver for collecting the rent of the building in which the objections were

    filed by the respondent and the case was fixed for orders after hearing the

    arguments. In addition, the Court below also directed the parties to file

    written arguments as well. It is the specific case of the appellant that the

    respondent is also facing criminal trial as the respondent after receiving the

    sale consideration amount from the appellant did not execute the sale deed

    which forced the appellant to lodge an FIR against the respondent and the

    police after investigation, proved the case against the respondent, though

    the same was challenged by the respondent before this Court, but the same

    was dismissed, as such, the appellant was diligently pursuing the case

    before the Court below. It has been alleged that the case was fixed for

    orders in the application filed under Order XL of the Code of Civil

    Procedure by the appellant and after hearing the arguments, the case was
    3 MA No. 4/2026

    kept by the learned Court below for orders, however, instead of passing the

    order in the main application, the suit was dismissed by the Court below.

    04. The appellant feeling aggrieved of the same, filed the application for

    restoration alleging therein that though the case was fixed on 24.11.2023

    and the date of hearing was given to the learned counsel by the Civil Clerk

    of the Court as 23.12.2023, which was Saturday, however, on the fixed date

    i.e 23.12.2023 the counsel for the appellant appeared before the Court

    below and came to know on the given date of hearing that the suit was

    already dismissed in default on 30.11.2023. It is specific case of the

    appellant that the appellant along with his family members were putting up

    in Rajasthan, thus he was not having knowledge of dismissal of the suit and

    after obtaining the knowledge of dismissal of the suit on 15.01.2025,

    contacted the Advocate on same day and obtained certified copy of the

    order of dismissal of the suit and thereafter filed the application for

    restoration but the same was dismissed vide order dated 21.02.2026 by the

    Court of learned Additional Judge, Jammu which is impugned in the

    present appeal. In the aforesaid backdrop, it has been vehemently argued

    by Mr. G S Thakur that the non-appearance of the appellant as well as his

    counsel who was diligently pursuing the case was neither intentional nor

    deliberate but due to the circumstances mentioned herein above and since

    this aspect of the matter has not been appreciated by the Court below, the

    present appeal has been preferred. Lastly, the learned counsel for the

    petitioner has submitted that the Court below has dismissed the application

    for restoration of the suit without giving any reason and feeling aggrieved

    of the same, the instant appeal has been preferred. The Court below has

    observed that there is no necessity to file a separate application for
    4 MA No. 4/2026

    condonation of delay and that a composite prayer can be made.

    05. Mr. Dharamvir, the learned counsel appearing on behalf of the caveator

    submits that since the appellant has failed to show any sufficient and

    reasonable cause, therefore, the delay has not been condoned in the instant

    matter and the prayer was rightly rejected and consequently, the application

    for restoration of the suit was also dismissed by the Court below. He

    further submits that the order is perfectly legal, justified and the appeal

    preferred by the appellant is devoid of any merit and is liable to be rejected

    at the threshold.

    06. Heard learned counsel for the appellant as well as the caveator, the caveat

    shall stand discharged.

    07. It has been brought to the notice of the Court by the learned counsel

    appearing on behalf of the appellant that the appellant has been cheated by

    the respondent, inasmuch as the respondent, after receiving the sale

    consideration amount, failed to execute the sale deed. Aggrieved by such

    conduct, the appellant filed a suit for specific performance of Agreement to

    Sell before the learned trial Court, however, the said suit came to be

    dismissed. Being further aggrieved, the appellant filed an application for

    restoration of the said suit, which application was also dismissed by virtue

    of order impugned dated 21.02.2026.

    08. A perusal of the record reveals that there was a delay of only 10 days in

    filing the application for restoration. Therefore, this Court is prima facie of

    the view that the Court below ought to have adopted a liberal approach in

    restoring the suit instead of dismissing the said application, so that the case

    could have been adjudicated on merits. It is also not denied by the

    respondent that he is facing criminal trial, having failed to execute the sale
    5 MA No. 4/2026

    deed after receiving the sale consideration amount from the appellant,

    which compelled the appellant to lodge an FIR against him. Upon

    investigation, the police have found substance in the allegations against the

    respondent. The reasons for the appellant’s non-appearance before the

    learned Trial Court appear to be plausible, and sufficient cause has been

    shown in the present appeal. In the interest of justice, the Court below

    ought to have restored the suit, thereby enabling the learned Trial Court to

    proceed with the matter and adjudicate the rights of the parties on merits.

    09. While the matter was being argued, it has been brought to the notice of the

    Court by Mr. G S Thakur, learned counsel for the appellant, that the

    appellant has, as on date, already paid an amount of Rs.15.00 lacs towards

    the total sale consideration of Rs. 1.30 Crore. Out of the said amount,

    Rs.12.00 lacs was paid as a part of the sale consideration vide Cheque No.

    006488 dated 11.11.2019 drawn on ICICI Bank from the account of the

    appellant’s partner, namely, Sandeep Singh Pathania. It is further submitted

    that an amount of Rs. 2.00 lacs was paid vide Cheque No. 006490 dated

    20.08.2020 and Rs.1.00 lakh was transferred to the account of respondent

    through J&K Bank on 20.08.2020. The aforesaid payments were made

    with the agreement that the balance sale consideration would be paid on or

    before 28.02.2020, subject to the respondent handing over possession of the

    property along with the relevant revenue extracts.

    10. Mr. G. S. Thakur, learned counsel for the appellant, on instructions from

    his client, undertakes that the appellant shall pay the balance sale

    consideration within a period of one month from today. It has further been

    agreed between the parties that, in the event the aforesaid amount is paid by

    the appellant to the respondent within the stipulated period, the respondent
    6 MA No. 4/2026

    shall have no hesitation in executing the sale deed in favour of the

    appellant, subject to there being no legal impediment.

    11. In view of the aforesaid, it would be appropriate to restore the suit and

    have the same decided on merits by the learned Trial Court, so that the

    issues raised before the Civil Court are adjudicated expeditiously in

    accordance with law and in the light of the statements so made by rival

    counsel for the parties on the instructions of their clients before this Court

    while deciding the present appeal.

    12. This Court is of the considered view that the ends of justice would be

    adequately met by setting aside the impugned order and remitting the

    matter to the learned Trial Court for fresh adjudication, so as to ensure that

    the dispute between the parties is resolved in a just, fair and thorough

    manner. This becomes all the more necessary in the peculiar facts and

    circumstances of the case and in view of the statement made by Mr. G. S.

    Thakur, learned counsel for the appellant, on instructions, that the appellant

    is ready and willing to pay the balance sale consideration within a period of

    one month from today.

    13. Accordingly, the impugned order dated 21.02.2026 passed by the learned

    Additional District Judge, Jammu, is set aside and the suit is restored to its

    original number. In view of the above discussion and the consensus

    emerging between the parties, the learned Trial Court is directed to proceed

    with the matter and decide the same afresh on merits, strictly in accordance

    with law. It is further directed that the statement so made before this Court

    shall be reduced into writing by the learned trial Court in the form of a duly

    executed agreement deed and shall be placed on record before the learned

    Trial Court. The learned Trial Court shall take the said agreement on record
    7 MA No. 4/2026

    and consider the same while adjudicating the matter on merits, which shall

    facilitate the learned trial Court for effective and expeditious resolution of

    the dispute between the parties in accordance with law.

    14. The parties are directed to appear before the learned trial Court on

    15.04.2026.

    15. Disposed of accordingly.

    (WASIM SADIQ NARGAL)
    JUDGE
    Jammu:

    30.03.2026
    Vijay

    Whether the order is speaking: Yes/No
    Whether the order is reportable: Yes/No

    Vijay Kumar
    2026.02.12 11:58
    I attest to the accuracy and
    integrity of this document



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here