Bhupinder Singh and Others vs Dilbagh Singh

M.S. Liberhan, J.—A suit for specific performance was filed by the respondent on 24-12-1982 and it was decreed on 26-7-1988. The petitioners preferred an appeal against the said judgment and decree. Admittedly, the appeal was barred by limitation of 20 days. The petitioners sought condonation of delay u/s 5 of the Limitation Act, inter alia, contending that Gian Kaur petitioner is a widow and the other petitioners are minors She was ill from 52-8-1988 to 13-9-1988. It is only after her recovery that she contacted her lawyer and collected from him a certified copy of the judgment along with the brief and filed the appeal on 19 9-1988.

The lower appellate Court found that it is not proved that Gian Kaur who is resident of village Dalike went to village Qadian or she underwent treatment for her illness there The deposition of the doctor with respect to the nature of the disease at the same time did not render her handicap in her day to day affairs Consequently, it was held that there were no sufficient grounds to condone the delay. It was also observed that there is no evidence that the petitioner remained bed ridden. Further it was found that since each day''s delay has not been explained and the appellant''s having recovered from her illness on 13.9.1988; her contacting the lawyer on 15-9-1988 and obtaining copy of the judgment and the brief on 18-9-1988. still the appeal was not filed till 12- 9-1988. Resultintly, the Court held that there are no sufficient grounds to condone the delay. Learned counsel for the petitioners contends that the lower appellate Court has erred in observing that each day''s delay has to be explained meticulously in view of the law laid down in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and Mostt. Sundari and Another Vs. Sakal Sahni and Others, . According to him, the lower appellate Court, has failed to take into consideration the factor of petitioner''s being a widow having minor children. Even if there was some negligence on her part, costs should have been the panacea. It was not such an inordinate delay which can give rise to any inference of mala fide on the part of the petitioners for preferring the appeal. It is further stated that since wrong law has been applied with respect to explaining each day''s delay and wrong facts with respect to the residence of the petitioner have been assumed, the lower appellate Court has failed to exercise jurisdiction vested in it.

Learned counsel for the respondent has controverted the submissions made by the counsel for the petitioners. It is argued that finding with respect to the sufficient cause having rot been made out, is a finding of fact arrived at by the Court below in exercise of jurisdiction and can not be interfered with Learned counsel for the respon- dent relies on Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, and The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, it was further contended that one heir was sufficient to prefer the appeal as he alone could have represented the State In this regard reliance was placed on Mahabir Prasad Vs. Jage Ram and Others, .

There is no dispute with respect to the petitioner''s being widow and the other petitioners being minors There is a dispute whether the appeal was barred by 18 days or 20 days. It was observed by the trial Court that Gian Kaur is a resident of village Dahke Tehsil Tartaran and she went to village Qadisn to reside with the friend of the husband of her sister. It was noticed that the doctor who appeared in the witness box stated that the petitioner was suffering from viral hepatitis chough in the opinion of the doctor. It was not of the nature, which rendered her handicap in her day to day affairs and the petitioner was capable of walking and was of found mind and senses. From the reading of the finding it is discernible that the lower appellate Court solely rejected the explanation of sufficient cause for condonation of delay on the ground that in spite of her suffering from a disease and the statement of the doctor proving that she was under his treatment, but was nut bed ridden and was id a position to move about and was able to give instructions for filing the appeal. There is no mala fide attributed to the appellants for filing the appeal after expiry of limitation The lower appellate Court has not disbelieved her counsel, who appeared as A. W. 2 Shri Baldev Singh Gupta Advocate and deposed that the brief and certified copy of the judgment were handed over to the appellant on 16-9-1988 and that she contacted him on 15-9-1983 Emphasis has been laid that when she had collected her papers and copy of the judgment on 16-9 1988, the appeal was not filed on 17-9-1988, rather it was filed on 19 9-1988.

In my considered view, the Court below has failed to take into consideration peculiar facts and circumstances of this case to the effect that the petitioners are minors represented through their mother- as guardian The lower appellate Court did not disbelieve the doctor with respect to her taking treatment from him nor the Advocate has been disbelieved with respect to the handing over of the brief and copy of the judgment on 16-9-1988 to her. Solely reproducing the words of the Section to the effect that the petitioner has failed to prove sufficient cause, is not sufficient. The lower appellate Court has further fallen in error of law with respect to explaining of each days'' delay. There is no doubt that there are plethora of precedents where it has been observed that each day''s delay has to be explained but in view of the observations made in Mst. Katiji''s case (supra) that for condoning the delay sufficient cause has to be broadly seen and not meticulously There may be some negligence on the part of the guardian but the delay is not so much inordinate which could deprive the appellant of bar right to file the appeal particularly when minors'' interest is involved and the Courts ate expected to protect their interest. Though no litmus test can be laid down that in case of minors, limitation has to be condoned irrespective of the facts and circumstances of the case, in my considered view, justice would be met if the delay is condoned on payment of costs for at the most, some negligence on the part of the mother.

So far as exercise of revisional jurisdiction is concerned, the appellate Court, without disbelieving the witnesses produced, has assumed that sufficient cause has not been shown. In my view, the lower appellate Court has thus failed to exercise the jurisdiction vested in it. in accordance with law.

For the reasons recorded above, the revision petition is allowed, the delay in filing the appeal is condoned subject to payment of Rs. 500/ as costs. The parties are directed to appear before the lower appellate Court on 7-11-1990. Since the appeal is an old one, the lower appellate Court is directed to decide the appeal expeditiously, preferably within six months.