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
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
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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
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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
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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
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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
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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
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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
VijayWhether the order is speaking: Yes/No
Whether the order is reportable: Yes/NoVijay Kumar
2026.02.12 11:58
I attest to the accuracy and
integrity of this document
