Ajmer Singh vs The Patiala Cooperative Sugar Mills Ltd., Rakhra

L.N. Mittal, J.

C.M. No. 6003-C of 2011 :

This is application by appellant for condonation of delay of 1956 days in re-filing the second appeal. Grounds pleaded for the same in paragraphs 2 to 5 are reproduced hereunder :

That some objections were raised by the registry branch and the RSA was returned back with the objections on 26.05.2004 and the same was received by Sh. Jawahar Lal Sethi - Clerk of the Counsel and the same was inadvertently put in the admitted cases and he was expired on 16.11.2005 and while arranging the office record the same was located and the objections were immediately removed by the counsel and the RSA was refiled in the Hon''ble High Court on 05.05.2006 as there was delay of (708 days - 40 days) = 668 days in refiling of RSA.

That an objection was raised by the branch and the RSA was returned back with objections on 31.05.2006 and the same was received by Sh. N. D. Sharma - Clerk of the Counsel and handed over to Sh. R. K. Sharma - Advocate, who kept the same in his Almirah and he was expired on 04.05.2007 and while arranging the office record, the RSA was located from his almirah and after removing the objections from RSA, the same was refiled on 31.10.2008 as there was delay of (883 days - 40 days) = 843 days in refiling of RSA. Copy of Death Certificate of Sh. Rakesh Sharma - Advocate is annexed as Annexure P-X.

That an objection was again raised by the registry branch and the RSA was returned back with objections on 08.12.2008 and due to rush of work the RSA was misplaced and while arranging the record the RSA was located and the objections were immediately removed by the counsel and the same was refiled on 04.05.2009 as there is delay of (146 days - 40 days) = 106 days in refiling of RSA.

That an objection was raised by the registry branch and the RSA was returned back on 05.08.2009 and due to rush of work inadvertently the RSA was put in the another brief of admitted cases and while arranging the office record the RSA was located and objections immediately removed by the counsel and the RSA was refiled in the Hon''ble High Court on 20.08.2010 as there was delay of (379 days - 40 days) = 339 days in refiling of Regular Second Appeal.

I have heard learned counsel for the applicant-appellant and perused the case file.

A bare perusal of the aforesaid grounds reveals that no sufficient ground for condoning the long delay of 1956 days in re-filing the appeal is made out. The delay is of more than five years. At every stage, it has been pleaded that file was misplaced sometimes in admitted cases and sometimes otherwise and it was always traced while arranging the records. Such specious ground for condoning long delay of 1956 days in re-filing the appeal cannot be accepted.

Counsel for the applicant-appellant contended that in one case, delay of more than 1600 days has been condoned by this Court. The contention is completely misplaced, misconceived and devoid of merit. It depends on facts and circumstances of each case. In one case, there may be sufficient ground to condone delay of 10 years, but in other case, there may not be any ground to condone delay of even 10 months. In the instant case, the delay of more than five years in re-filing the appeal remains almost completely unexplained.

Counsel for the applicant-appellant sought to arouse compassion and sympathy of the Court by pleading that his son Mr. R. K. Sharma - Advocate expired resulting in some delay, as mentioned in paragraph 3 of the application. However, the said ground is also insufficient to condone the long delay of more than five years. According to paragraph 3 of the application, death of Mr. R. K. Sharma, Advocate resulted in delay of 843 days only. Moreover, the appeal file had been returned on 31.05.2006, but Mr. R. K. Sharma expired on 04.05.2007 i.e. almost one year after the return of the file by the Registry and during this period of almost one year, Mr. R. K. Sharma, Advocate was alive, and therefore, the delay cannot be said to be on account of his death. In addition to it, the remaining long delay has also not been explained at all.

For the reasons aforesaid, I find that the application is completely frivolous and meritless and deserves to be dismissed with exemplary cost to be deposited by the counsel, whose lapse has resulted in such long delay in re-filing the appeal. Accordingly, the instant application is dismissed with cost of Rs.5,000/-to be deposited by Mr. S. K. Sharma, Advocate with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose.

Main Appeal :

Since application for condonation of delay in re-filing the appeal has been dismissed, the appeal is also dismissed as time barred.