Jammu & Kashmir High Court
Jahangir Ahmed vs Riaz Ahmed And Another on 17 July, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
37
2026:JKLHC-JMU:2152
HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 15/2023
Jahangir Ahmed .....Appellant(s)/Petitioner(s)
q
Through: Mr. Syed Waqar Hussain Shah, Adv.
vs
Riaz Ahmed and another ..... Respondent(s)
Through: Mr. Ajaz Choudhary, Adv.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
17.07.2026
1. The present petition has been filed under Article 227 of the Constitution
for quashing of order dated 11.08.2021 passed in an application
preferred by the petitioner/defendant No. 1 in a suit of partition, titled,
Riaz Ahmed another vs. Jehangir Ahmed and another pending before
the court of Sub Judge, Surankote(for short the trial court).
2. The petitioner has challenged the order impugned on the ground that the
learned trial court has not rightly passed the order, particularly when the
petitioner was not served in the aforesaid suit as he was on Army duty
in Assam.
3. Learned counsel for the petitioner submits that the learned trial court
has committed an error by rejecting the application preferred by the
petitioner for setting aside the ex parte proceedings, particularly when
he was out of station on account of his employment in Army. He further
submits that the learned trial court could not have resorted to Article
163 of Schedule-I of the Limitation Act for the purpose of rejecting the
application.
2026:JKLHC-JMU:2152
4. On the contrary, Mr. Ajaz Choudhary, learned counsel for the
respondents submits that the trial court be directed to decide the
application afresh, as the learned trial court has decided the application
only on the ground of limitation.
5. Heard learned counsel for the parties and perused the record.
6. Article 163 of the Schedule-I of the Limitation Act provides for a
period of limitation for a period of 30 days for filing of an application
by the plaintiff for an order to set aside a dismissal of the suit for default
of his appearance or for failure to pay costs of service of process or to
furnish security for costs and the said Article was not at all applicable in
the instant case. This Court is of the considered view that the learned
trial court has committed an error, while dismissing the application of
the petitioner/defendant No. 1 for setting aside ex parte proceedings
filed by the plaintiff by relying on Article 163 of the Schedule-I of the
Limitation Act.
7. Accordingly, the order impugned is set aside and the matter is
remanded to the trial court to decide the application preferred by the
petitioner/defendant No. 1 for setting aside ex parte proceedings in a
suit filed by the plaintiff afresh in accordance with Order IX Rule 7 of
the CPC.
8. Disposed of.
(RAJNESH OSWAL)
JUDGE
Jammu
17.07.2026
Rakesh PS
CM(M) No. 15/2023 Page 2 of 2
