Srinagar- The High Court of J&K and Ladakh has imposed Rs two lakh as costs on Director Health Services Kashmir as it dismissed a plea challenging order which was passed by City Judge Srinagar on 14 May 2018.
A bench of Justice Atul Sreedharan observed that City Judge Srinagar had directed the DHSK and another to remain present before it on 30 May 2018, failing which appropriate proceedings as warranted under law shall be initiated.
“It is undisputed that the petitioner (DHSK) did not appear before the Executing Court (City Judge) as required. Instead the present petition was filed against the order of the Executing Court, stating that the order passed by the Court of Execution is bad in law and on facts as the decree given by the learned Trial Court in favour of the respondent (DSHK) herein has already been complied with and, therefore, there was nothing further to fulfill in the decree passed by the learned Trial Court,” the court said.
As per the case, DHSK and another were the defendants in the civil suit filed by one I A Baqal before the Court of City Judge, Srinagar on 1 July 2001. The suit was decreed ex-party by the Trial Court in favour of Baqal on 5 June 2003 as defendants who after being served, remained absent.
On 17 October 2001, evidence was recorded ex-parte and thereafter defendants filed an application for setting aside the ex-parte proceedings. However, the court observed, the defendants—DHSK and another— once again remained absent which resulted in the dismissal of their application seeking setting aside of the ex-parte proceedings, on 7 February 2003.
“Therefore, it is clear from the conduct of the petitioners (DHSK and other) that they had knowledge of pendency of the suit before the Trial Court as they had filed the application for setting aside the order, whereby they were declared ex-parte,” the court said, adding, “After the suit was decreed, the appeal was not filed by the petitioners, challenging the judgment and decree passed by the Trial Court within prescribed period of limitation, resulting in the dismissal of the first Appeal on the ground that the Appeal was time barred and filed without an application for condoning the delay.”
Thereafter, the court said, when execution proceedings were initiated, the petitioners, DHSK and other, filed a revision petition before the Principal District Judge, Srinagar which was also dismissed.
“Thereafter, the writ petition was filed before this Court which too was dismissed in default,” the court observed, adding, “The petitioner moved an application for restoration of the writ petition along with an application for condonation of delay of 550 days, but that was also dismissed by this Court on 23.04.2015.”
The conduct of the DHSK, the court said, reveals that it was casual and careless about the manner in which it was prosecuting the case.
“After having failed in the first appeal, revision and the writ petition, the petitioners filed a second appeal against the judgment and order of the First Appellate Court after a delay of 13 years, 9 months and 20 days and moved an application for condoning the delay,” the court said, adding, “This Court dismissed the second Appeal on the ground that the petitioners did not show any good or sufficient grounds to condone the unexplained and inordinate delay of 13 years, 9 months and 20 days.”
If the petitioners were aggrieved by the order passed by the Executing Court, the court said, they had an opportunity to go before it and demonstrate there that the decree passed by the Trial Court was already complied with and there was no reason for any execution, but instead it has chosen to further delay the proceedings by another five years by filing this petition,” the court said.
“Thus, it is seen that the respondent who was recipient of an order in his favor in the year 2003 has been kept hanging for twenty (20) years thereafter by repeated frivolous litigation by the petitioners,” the court said, adding, “Under the circumstances, despite the strenuous efforts of the counsel for the petitioners, this petition is dismissed and costs of Rs. 2,00,000/- imposed upon the petitioners to be paid to the respondent (Baqal) within a period of thirty days from the date of this Order.” The Union Territory, the court said, is given liberty to recover the amount of costs of Rs. 2,00,000 from the Director Health Services, Kashmir.
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