Bachan Singh vs Gurmail Singh and Others

L.N. Mittal, J.—Plaintiff has filed instant revision petition u/s 115 of the Code of Civil Procedure.

Petitioner filed suit against the respondents for permanent injunction. Respondents/defendants filed counter claim in the said suit. Learned Additional Civil Judge (Senior Division), Sangrur vide judgment and decree dated 10.3.2005 decreed the plaintiff suit and also partly decreed the counter claim of defendants-respondents. Plaintiff preferred first appeal against judgment and decree of the trial court to challenge the relief granted to the defendants in the counter claim. The said appeal was barred by limitation and accordingly petitioner moved application u/s 5 of the Limitation Act for condonation of delay of 235 days in filing the said appeal. Learned Additional District Judge, Sangrur vide impugned judgment dated 28.10.2009 dismissed petitioner''s application for condonation of delay in filing the appeal and consequently rejected the appeal as time barred. Feeling aggrieved, the plaintiff has filed the instant revision petition.

I have heard learned Counsel for the parties and perused the case file.

The plaintiff alleged in his application for condonation of delay in the lower appellate court that his counsel in the trial court had shifted to Chandigarh for practice and therefore, the petitioner consulted another Advocate who advised him not to file appeal as the suit had been decreed and counter claim had been dismissed. However, a day before the filing of the appeal, the respondents tried to dispossess the petitioner from the land in question forcibly asserting that the trial court had passed order in their favour. Thereupon, the petitioner tried to contact the other Advocate Mr. Purna Nand who had advised him not to file appeal and learnt that the said Advocate had died. Then the petitioner got advice from his previous counsel in the trial court by contacting him at Chandigarh and thereupon the appeal was filed.

Respondents controverted the averments of the petitioner and pleaded that counsel for the petitioner in the lower appellate court was also counsel for the petitioner in the trial court and was also present at the time of final arguments in the trial court. It was also asserted that respondent had filed execution petition for execution of the decree passed in their favour in counter claim and notice in the execution petition was issued to the petitioner for 12.11.2005 and then for 17.12.2005 but the petitioner intentionally did not receive the said notice. It was also pleaded that respondents had filed another suit for mandatory injunction against the petitioner wherein reference to the decree passed by the trial court in favour of respondents in the counter claim was made and the petitioner filed written statement in that second suit on 27.7.2005 and thus, the petitioner had ample knowledge of the passing of decree in counter claim by the trial court.

Learned Counsel for the petitioner contended that the delay in filing the appeal is unintentional and on account of wrong advice by Mr. Purna Nand, Advocate since deceased. It was also contended that law of condonation of delay is liberal and delay should have been condoned by lower appellate court on payment of costs.

On the other hand, learned Counsel for the respondents reiterated the contentions raised in the reply in the lower appellate court. It was pointed out that Mr. Rajesh Singla, Advocate who appeared for the petitioner in the lower appellate court was also counsel for him in the trial court and counsel for him in the second suit filed by the respondent. It was also pointed out that in view of averments in the second suit regarding decree passed by trial court in counter claim of respondents, the petitioner and his counsel became aware of the said decree before filing written statement on 27.7.2005 in the second suit but the first appeal was preferred in December, 2005.

I have carefully considered the rival contentions. It is correct that the petitioner has not been able to explain delay of almost 8 months in filing the first appeal in a satisfactory manner. However, nevertheless I am of the considered opinion that ends of justice would be met if the delay in filing the first appeal is condoned on payment of heavy costs. Courts are liberal in the matter of condonation of delay in filing appeals and revisions. Taking holistic view of the matter, ends of justice would require that in the instant case delay in filing the first appeal by the petitioner be condoned on payment of heavy costs.

For the reasons recorded herein above, the instant revision petition is allowed and impugned judgment dated 28.10.2009 passed by learned Additional District Judge, Sangrur is set aside and delay of 235 days in filing the first appeal by the petitioner is condoned on payment of Rs. 10,000/- as costs precedent. Since already long delay has occurred, the first appeal shall be decided by the lower appellate court without any delay and preferably within three months from the date of receipt of certified copy of this order.

Parties are directed to appear in the lower appellate court on 3.8.2010.