Budh Singh vs Buta Singh

L.N. Mittal, J.—Defendant Budh Singh has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 14.09.2009, passed by learned Additional District Judge, Barnala, whereby first appeal filed by the defendant-petitioner has been dismissed as time barred, by dismissing application of the petitioner for condonation of delay in filing the appeal.

Suit filed by respondent Buta Singh against petitioner Budh Singh was decreed by the trial court vide judgment and decree dated 02.05.2007. Defendant preferred first appeal against the said judgment and decree on 15.04.2008. Along with first appeal, defendant moved application for condonation of delay in filing the appeal alleging that his counsel had advised him that the counsel would call the petitioner as and when his presence would be required and there was no necessity for the petitioner to appear on each and every date of hearing. Ultimately on 26.02.2008, a court official visited the village to execute attachment warrant and few days thereafter, the petitioner went to his counsel, who informed the petitioner about the judgment and decree dated 02.05.2007 passed by the trial court. The petitioner then applied for certified copies of judgment and decree of the trial court and filed the appeal resulting in delay. Condonation of said delay was sought on these grounds.

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

Learned Counsel for the petitioner contended that the petitioner was not aware of the judgment and decree of the trial court and therefore, there has been delay of 189 days in filing the first appeal and there was sufficient ground for condoning the same. The contention cannot be accepted. At the outset, it has to be noticed that delay was not of 189 days only but was of more than 300 days. Judgment and decree of the trial court are dated 02.05.2007 and the appeal was filed on 15.04.2008 i.e. about 11� months after the passing of judgment and decree by the trial court. Limitation period for filing the first appeal was 30 days, as per Article 116 of the Schedule to the Limitation Act. Thus, there was delay of almost 10� months i.e. more than 300 days in filing the first appeal.

The only ground pleaded for condonation of aforesaid delay of more than 10 months in filing the first appeal is that the petitioner''s counsel in the trial court had told the petitioner not to come on each and every date of hearing and therefore, the petitioner could not come to know of the passing of judgment and decree dated 02.05.2007 by the trial court till 26.02.2008, when court official came to the village to execute warrant of attachment. This ground is too specious to be accepted.

The petitioner admitted in his cross-examination that he has about 50 cases pertaining to pronotes, in which he is either plaintiff or defendant. Such a litigant would not have remained without contacting his counsel in the case for 9-10 months. Even otherwise, even if the petitioner had been advised not to come to the trial court on each and every date of hearing, the petitioner would have remained in contact with his counsel telephonically or otherwise. It is unbelievable that such a litigant, as the instant petitioner, did not contact his counsel for 9-10 months to know the status or fate of the suit. Thus, the very ground pleaded by the petitioner for condonation of long delay of more than 10 months is inherently improbable and unreliable.

In addition to the aforesaid, even after the petitioner came to know of the judgment and decree of the trial court on 26.02.2008, when court official visited the village to execute attachment warrant, even thereafter, the petitioner did not act promptly. The petitioner applied for certified copies of judgment and decree of the trial court on 17.03.2008 i.e. after delay of 20 days, for which there is no explanation whatsoever. The matter does not rest here. Certified copies of judgment and decree of the trial court were prepared on 18.03.2008, but even thereafter, the first appeal was filed on 15.04.2008 i.e. after delay of another four weeks, for which also there is no explanation.

Learned Counsel for the petitioner contended that the petitioner remained ill since 25.03.2008 till 13.04.2008. However, this plea is completely untenable because it has not even been averred in the application for condonation of delay nor substantiated by any material on record. Moreover, first appeal could be filed even before 25.03.2008, when certified copies of judgment and decree of the trial court were ready on 18.03.2008. In fact, application for condonation of delay in filing the appeal was got typed on 26.03.2008 - the date mentioned thereon, but actually the said application with ''Memorandum of Appeal'' was presented in the Court on 15.04.2008. It is apparent that there was intentional delay on the part of the petitioner with some oblique motive.

It is correct that Courts adopt liberal approach in the matter of condonation of delay. However, the Courts cannot grant indulgence in favour of a litigant, who does not act bona fide. Moreover, the law of limitation cannot be made redundant by condoning such long delay of more than 10 months without there being any ground, much less reasonable or sufficient cause to condone the same.

The petitioner also did not examine his counsel in the trial court as witness in support of his version that counsel had advised him not to come to the Court on each date of hearing or that the counsel would inform the petitioner. Thus, the petitioner''s version stands completely unsubstantiated.

The petitioner is a court-bird. He is aware of the court procedures. From the discussion aforesaid, it becomes manifest that the delay in filing the first appeal by the petitioner was intentional and could not be on account of the alleged circumstances mentioned in the application.

For the reasons recorded herein above, I find no illegality or perversity in the impugned order of the lower appellate court so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Application moved by the petitioner for condonation of delay in filing the first appeal has been rightly dismissed by the lower appellate court. The revision petition is completely bereft of any merit and is accordingly dismissed in limine.