Gurmel Singh vs Harnek Singh and Others

Rakesh Kumar Jain, J.—This is an application filed u/s 151 of Code of Civil Procedure, 1908 (for short, ''Code of Civil Procedure'') for condonation of delay of 41 days in re-filing the review application.

For the reasons mentioned in the application which is supported by an affidavit of the Clerk of the Counsel, the same is allowed and delay of 41 days in re-filing the review application is hereby condoned.

This is an application filed u/s 5 of the Limitation Act, 1963 (for short, ''the Act'') for condonation of delay of 437 days in filing the review application.

The reason assigned in the application is that after the decision of RSA No. 1537 of 1985 by this Court on 27.2.2008, the office of Mr. M.L. Sarin, learned Senior Counsel did not inform the applicant and when he contacted him, delay had already occurred. Thereafter, judgment was down-loaded from the internet and the present review application was filed. The application is duly supported by an affidavit of the applicant/Respondent No. 1.

Notice in the application was issued to which reply has been filed. Learned Counsel for the applicant has referred to a decision of Karnataka High Court in the case of Thimmaiah (deceased by L.R.) v. M. Muniswamy and Ors. AIR 2006 NOC 123 (KANT), in which it is held that when the Petitioner neither had the knowledge nor notice of the order, the delay is liable to be condoned.

On the contrary, learned Counsel for the non-applicant/Appellant cited a judgment of this Court in the case of Bani Singh v. State of Haryana and Ors. 2010 (3) RCR 48 and a decision of the Supreme Court in the case of Balwant Singh (Dead) v. Jagdish Singh and Ors. 2010 (3) RCR 856 to contend that the reason assigned by the applicant for seeking condonation of delay is an after-thought. In the case of Bani Singh (Supra), there was a delay of more than one year and two months in filing of the second appeal. It was tried to be explained that the counsel did not inform him about the fate of the first appeal. This Court held that it is not a sufficient cause to condone the delay. It was not the duty of the counsel to keep informing the Appellant about the status and fate of the appeal. Moreover, even after coming to know of the decision of the appeal in the said case, the Appellant had taken another 11 months to file second appeal for which there was no explanation. In this case also, it is not clear as to when the information was sought from the office of Mr. Sarin for filing the review application.

In view of the above, I do not find any sufficient reason to condone the delay. Hence, this application is dismissed. Consequently the Review Application is also dismissed.