Jammu & Kashmir High Court
Ashok Singh And Others vs Vishwander Dev And Others on 19 May, 2026
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
RFA No.31/2025
CM Nos.4052 & 4053 of 2025
Ashok Singh and others .....Petitioner(s)
Through: Mr.Rohit Verma, Advocate
Vs
Vishwander Dev and others .....Respondent(s)
Through: Mr. O.P.Thakur, Sr. Advocate with
Mr. R.K.S.Thakur, Advocate for R-1 to 5
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
19.05.2026
CM No.4052/02025
1. Through the medium of this application, the applicants seek condonation
of 65 days‟ delay in filing appeal against judgment dated 31 st January,
2025 passed by the learned Principal District Judge, Rajouri (hereinafter
to be referred as the “trial Court”) in File NO.22/2022 titled Ashok Singh
and others v. Vishwander and others.
2. The ground urged by the applicants to seek condonation of delay is that
they were busy in reaping the crops sown by them on their land including
the suit land. According to the applicants, having been threatened of
forcible dispossession, to protect their possession, have been putting in
their native place. It is only one day during three months, when they came
to sign another petition to be filed before the Divisional Commissioner,
Jammu, they asked their counsel to file the appeal against the judgment
impugned.
3. In response to the notice, the respondents/non-applicants opposed the
application by filing objections thereto. It is stated that applicants have not
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shown any cause muchless a sufficient cause which prevented them in
filing the appeal within the prescribed period of limitation.
4. The facts in brief are that One Sawal Singh, was the owner in possession
of landed property situated at village Hathal Tehsil Sunderbani District
Rajouri. Said Sawal Singh was married to Gulabi Devi, out of their
marriage they have two daughters, namely Amri and Indri. Amri Devi
was the grandmother of appellant Nos. 1 to 5 and mother-in-law of
appellant No.6. After the demise of Gulabi Devi, Sawal Singh married to
Mst. Shastro and from that marriage, a son namely, Dharam Singh was
born. After the death of Sawal Singh, mutation of inheritance was attested
in favour of Dharam Singh. Thereafter, said Dharam Singh also died. It is
stated that at the time of death, Dharam Singh was unmarried. It is stated
that after the death of the Dharam Singh, step brother of the Amri and
Indri, the estate left behind by their father Sawal Singh devolved upon
them being the only survivor daughters. However, Shastro, without
having any right in the property, had executed a gift deed in favour of the
respondents, thereby donating the estate left behind by the father of Amri
and Indri. The Gift deed came to be challenged by the appellants before
the trial Court by filing a civil suit, which came to be dismissed by the
trial Court vide order dated 31.01.2025, which has been impugned by the
appellants before this Court.
5. In view of the amendment carried out in the Hindu Succession Act,
daughters are equally entitled to inherit the estate left behind by the father.
The conferral of right is by birth, and the rights are given in the same
manner with incidents of coparcenary as that of a son and she is treated as
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a coparcener in the same manner with the same rights as if she had been a
son at the time of birth.
6. Having heard learned counsel for the parties and perused the material on
record, I find prima facie merit in the appeal preferred by the appellant.
7. Although a delay cannot be condoned without sufficient cause, the case’s
merit cannot be discarded solely on the technical grounds of limitation.
The Court further emphasized that a liberal approach should be taken in
condoning delays when the limitation ground undermines the merits of the
case and obstructs substantial justice. The Supreme Court in Paragraphs
22 of State of Uttar Pradesh v Satish Chand Shivhare And Brothers,
2022 SCC OnLine SC 2151, it has been held thus:
“22. When consideration of an appeal on merits is pitted against the
rejection of a meritorious claim on the technical ground of the bar of
limitation, the Courts lean towards consideration on merits by adopting
a liberal approach towards „sufficient cause‟ to condone the delay. The
Court considering an application under Section 5 of the Limitation Act
may also look into the prima facie merits of an appeal. However, in this
case, the Petitioners failed to make out a strong prima facie case for
appeal. Furthermore, a liberal approach, may adopted when some
plausible cause for delay is shown. Liberal approach does not mean that
an appeal should be allowed even if the cause for delay shown is
glimsy. The Court should not waive limitation for all practical purposes
by condoning inordinate delay caused by a tardy lackadaisical negligent
manner of functioning.”
8. From a perusal of the above extract, it becomes crystal clear that when
consideration of an appeal on merits is pitted against the rejection of a
meritorious claim on the technical ground of the bar of limitation, the
courts lean towards consideration on merits by adopting a liberal approach
towards sufficient cause.
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9. In this view of the matter, although the cause shown by the appellant
cannot be construed as sufficient, I am of the opinion that the appeal
deserves to be heard on merits. Accordingly, delay in filing the appeal is
condoned. This shall, however, be subject to payment of Rs.10,000/- as
costs to be deposited in the advocates welfare fund. The application shall
stand disposed of accordingly.
10. Registry to list the appeal on 30th June, 2026.
(Moksha Khajuria Kazmi)
Judge
Jammu
19.05.2026
Vinod, Secy
Vinod Kumar
2026.05.21 17:06
I attest to the accuracy and
integrity of this document
