Dismissed¶21

Usha Wazir and Other v. Gagan Jain

J&K HC12 Dec 2025CM(M)/307/2025

Case brief

AI extract

What is this about?

J&K and Ladakh HC at Jammu; CM(M) No. 307/2025; Usha Wazir & Ors. v. Gagan Jain; order dated 12.12.2025 by Justice Rahul Bharti; condonation of delay; civil 1st appeal; J&K Limitation Act, 1995 (1938 A.D.) versus Limitation Act, 1963; section 96 read with Order 41, J&K Code of Civil Procedure, Svt. 1977; eviction decree dated 30.04.2025; right of appeal born with institution of suit; petition dismissed; priority in hearing appeal; execution of decree stayed during pendency of appeal.

What did the court decide?

Petition of the petitioners/decree holders dismissed; however, the appellate court (Additional District Judge, Jammu) directed to accord priority to disposal of the civil 1st appeal, and execution of the impugned decree ordered to remain stayed during the pendency of the appeal. ¶21

Usha Wazir and Other Vs Gagan Jain — J&K HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

¶21

Issue for consideration

Whether the order dated 06.11.2025 of the 1st Appellate Court (Additional District Judge, Jammu) condoning the delay in filing the civil 1st appeal warranted interference by this Court. +1 more

¶21

Court's answer

As the condonation of delay application had nonetheless been made and disposed of in favour of the appellant/judgment debtor, the Court found no scope for intervention in the matter and declined to entertain the petition, dismissing it.

¶21

Ratio / Principle

The institution of the civil 1st appeal was to be governed by the J&K Limitation Act, 1995 (1938 A.D.), coinciding with the institution of the appeal under section 96 read with Order 41 of the Jammu & Kashmir Code of Civil Procedure, Svt. 1977, on the principle that the right of appeal is born alongwith the institution of the suit, which took place in 2003.

¶18

Key takeaways

Since the suit had been instituted under the J&K Code of Civil Procedure, Svt. 1977, the limitation governing the civil 1st appeal was under the J&K Limitation Act, 1995 (1938 A.D.), and therefore there was no scope for any condonation of delay application being considered.ratio¶21
The appellate court of Additional District Judge, Jammu is directed to accord priority to the disposal of the civil 1st appeal, the original litigation having lasted more than twenty (20) years, hearing to be accorded some priority as per docket load.ratio¶22
During the pendency of the Civil 1st Appeal, the execution of the impugned decree shall remain stayed.

Detailed headnote1 paragraphs

CM(M) dismissed (Rahul Bharti, J., 12.12.2025) — Condonation of delay in filing civil 1st appeal against eviction decree dated 30.04.2025: suit instituted in February, 2003 under the J&K Code of Civil Procedure, Svt. 1977; right of appeal being born alongwith the institution of the suit, limitation for the appeal under section 96 read with Order 41 J&K CPC was governed by the J&K Limitation Act, 1995 (1938 A.D.), not the Limitation Act, 1963; hence no scope existed for a condonation of delay application, yet the Additional District Judge, Jammu allowed such an application on 06.11.2025; High Court found no scope for intervention and dismissed the decree holders' petition; appellate court directed to hear the appeal on priority (litigation over 20 years old); execution of the decree stayed during pendency of the appeal.

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Serial No. 01

¶2

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CM(M) No. 307/2025 CM No. 7259/2025

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Usha Wazir & Ors.

¶5

…..Petitioner(s)

¶6

Through: Mr. G. S. Thakur, Advocate.

Gagan Jain

.….Respondent(s)

Through: Mr. Sunil Dutt Sharma, Advocate.

¶11

CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE ORDER

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(12.12.2025)

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01. The petitioners are the successors-in-interest of original plaintiff-Wazir Kedarnath who actually instituted a civil suit for eviction from the demised shop in February, 2003 before the court of 3^rd Additional Munsiff, Jammu.

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02. During the pendency of said civil suit, the original plaintiffWazir Kedarnath expired resulting in his legal representatives, who are the petitioners herein, being brought on record to pursue the civil suit which ultimately resulted in a decree and judgment dated 30.04.2025 thereby directing vacation from the demised shop by the defendant/respondent herein. The pendency of the civil suit has lasted more than 20 years.

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2 CM(M) No. 307/2025

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03. Against this said judgment/decree, the defendant/judgment debtor/respondent herein has preferred a civil 1^st appeal before the court of Additional District Judge, Jammu.

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04. The institution of civil 1^st appeal came to take place on 01.07.2025 but under a misconception that the institution of the civil 1^st appeal was to be governed by the Limitation Act, 1963 instead of J&K Limitation Act, 1995 (1938 A.D.), the institution of the appeal by the defendant/judgment debtor/respondent was reckoned to be time barred for which the judgment debtor/respondent preferred an application on 09.10.2025 for condonation of delay by resorting to an abundant caution which application came to be allowed by 1^st Appellate court of Additional District Judge, Jammu by virtue of an order dated 06.11.2025 against which the petitioners/decree holders have came forward with the present petition.

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05. As already observed that the institution of Civil 1^st Appeal by the judgment debtor/respondent was to be governed under the J&K Limitation Act, 1995 (1938 A.D.) as coinciding with the institution of the civil 1^st appeal under section 96 read with order 41 of Jammu & Kashmir Code of Civil Procedure, Svt. 1977 on the principle that right of appeal is born alongwith the institution of the suit which took place in 2003.

¶19

06. As the institution of suit in the present case had taken place under J&K Code of Civil Procedure, Svt. 1977 and so was to remain the origin of civil 1^st appeal under section 96 and, therefore, the

¶20

3 CM(M) No. 307/2025

¶21

limitation which was to govern the institution of the civil 1^st appeal under J&K Code of Civil Procedure, Svt. 1977 was to be under J&K Limitation Act, 1995 (1938 A.D) and, therefore, there was no scope for any condonation of delay application being filed to be considered but nevertheless same having been done and disposed of in favour of the appellant/judgment debtor/respondent, this Court finds no scope for intervention in the matter and, therefore, the present petition is not entertained and, therefore, dismissed.

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07. However, the appellate court of Additional District Judge, Jammu is directed to accord priority to the disposal of civil 1^st appeal keeping in view that the original litigation lasted more than twenty (20) years and, therefore, hearing of the civil 1^st appeal be accorded some priority as per docket load.

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08. During the pendency of the Civil 1^st Appeal, the execution of the impugned decree shall remain stayed.

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(RAHUL BHARTI) JUDGE

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JAMMU 12.12.2025 Shivalee

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

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Shivalee Khajuria 2025.12.15 13:26 I attest to the accuracy and integrity of this document

Usha Wazir and Other v. Gagan Jain

Case brief

What is this about?

What did the court decide?

Usha Wazir and Other v. Gagan Jain

Case brief

What is this about?

What did the court decide?

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What the court decided

Issues for consideration

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