Kamaljit Singh and Others vs Sandeep Singh and Others

Inderjit Singh, J.—Petitioners have filed this revision petition against contesting-respondents No. 1 to 3 and other proforma respondents under Article 227 of the Constitution of India for setting aside the impugned order dated 15.02.2013 passed by learned Addl. District Judge, Jalandhar, vide which the application of the respondents under Section 5 of the Limitation Act is allowed and delay of 165 days in filing the appeal is condoned. Notice of motion was issued and contesting-respondents appeared through their counsel and contesting the petition. The service of other proforma respondents was dispensed with.

I have heard learned counsel for the parties and have gone through the record.

From the record, I find that there is delay of 165 days in filing the appeal by applicants-respondents No. 1 to 3 and application under Section 5 of the Limitation Act was filed along with the appeal for condoning the delay. It is stated in that application that civil suit titled as ''Mohan Singh v. Banta Singh'' was pending in the civil courts at Phillaur. Banta Singh, grandfather of Sandeep Singh applicant/appellant No. 1 had been attending the proceedings, who died in the year 2002 while father of applicants No. 1 and 2 and husband of appellant No. 3 namely Didar Singh died on 31.12.2001. At that time, applicant No. 2 was minor and applicant No. 1 was also in his earlier twenties. It is further stated in the application that after the death of father of applicants No. 1 and 2, their grandfather Banta Singh took care of the applicants but he died in the year 2002. It is also stated that the counsel representing the applicants at Phillaur assured them that they would be informed when the case is posted for their evidence but applicants did not receive any intimation in this regard and applicants were prevented from adducing their evidence and the suit was decreed by the trial court and they came to know about he decree on 02.02.2009 when plaintiff along with Mohinder Singh and Jagtar Singh came to the village and started proclaiming that the Will and sale deeds have been set aside by the Court at Phillaur. Then applicants immediately went to counsel at Phillaur, from where it transpired that suit was decreed on 04.09.2008. Thereafter, applicants obtained copy of the judgment and decree and appeal along with application in question has been filed. In reply to this application, legal representatives of respondent No. 1 except Piara Singh, appeared and filed reply to the application taking preliminary objections that the application is not maintainable as no cogent and convincing reason has been given for condonation of delay and the applicants have failed to explain the long delay and applicants were duly represented in the lower Court but were proceeded ex parte due to their non-appearance.

Learned Addl. District Judge, Jalandhar after framing the issues and giving opportunity to produce the evidence, decided this application for condonation of delay in favour of the applicants/appellants. The Court passed a detailed order discussing the evidence on record minutely as well as law and held that delay in filing the appeal has been explained and there is nothing to suggest mala fide on the part of the applicants or that they had resorted to dilatory tactics. It is also held that by filing the appeal later, in no way, the applicants are going to be benefited. Learned counsel for the petitioners, at the time of arguments has not pointed out as to what material evidence has not been discussed and what material evidence has not been discussed in right perspective. There is also nothing on the record to show that there is any mala fide on the part of applicants to file the appeal late.

Learned counsel for the respondents has cited judgment passed by this Court in Harbans Singh Vs. Punjab National Bank and Others, , in which it is held that by filing the appeal at belated stage, the party does not gain anything rather suffers and runs a risk. The other party can at the most be compensated with costs. Learned counsel for the respondent further cited judgment passed by the Hon''ble Supreme Court in M.K. Prasad v. P. Arumugam, 2001 (4) R.C.R. (Civil) 87, in which also it is held that the Court has a discretion to condone or refuse to condone the delay. While deciding application, the inconvenience caused to the other side can be appropriately compensated by awarding costs keeping in view the stakes involved. I have gone through the above-cited judgments and the same fully apply to the facts of the present case. On the other hand, learned counsel for the petitioners has cited judgment passed by this Court in Bani Singh v. State of Haryana and others, 2010 (3) R.C.R. (Civil) 48, in which it is held that for delay of more than one year and two months in filing second appeal, it was explained by appellant that his counsel did not inform him about the fate of first appeal, which explanation was not sufficient.

I have gone through this cited judgment and the same having distinguished facts will not apply in the present case.

On the same point, learned counsel for the petitioner cited judgment passed by this Court in Jaswant Singh and Others Vs. Assistant Registrar, Co-op. Societies and Others, , in which it is held that for delay of more than one year and two months in filing second appeal, it was explained by appellant that his counsel did not inform him about the fate of first appeal, which explanation was not sufficient. I have gone through this cited judgment and the same having distinguished facts will not apply in the present case.

On the same point, learned counsel for the petitioner dated judgment passed by this Court, in Jaswant Singh and Others Vs. Assistant Registrar, Co-op. Societies and Others, I have also gone through this judgment and the same having distinguished facts will not apply as in the present case in hand, father of the applicants No. 1 and 2, who was pursuing the case had died in 2001. Then, their grandfather, who was pursuing the case, also died in 2002. One of the applicant was minor at that time and other applicant, as stated, was of young age. The counsel did not inform them about the case that is why they have not even led their evidence. All these facts have been duly discussed by learned Addl. District Judge, Jalandhar. Learned counsel for the petitioner has further cited judgment passed by the Hon''ble Supreme Court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, , in which it is held that if the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. In case explanation given is found to be concocted or applicant is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone delay. I have gone through this cited judgment. Rather, this supports the case of the respondents because in the present case, delay is only of 165 days and there is no mala fide on the part of the applicants and further the applicants were not going to be benefited from this delay. Otherwise also, if the delay is not condoned, the applicants would suffer irreparable loss because sale deeds in their favour have been set aside by the trial court which involves about 17 acres of land. Therefore, to do substantial justice between the parties and to determine their rights on merits, the application for condonation of delay has been correctly allowed by learned Addl. District Judge, Jalandhar.

In view of the above discussion, I find that the impugned order dated 15.02.2013 passed by learned Addl. District Judge, Jalandhar, is correct and as per law and the same is upheld. Therefore, finding no merit in the present revision petition, the same is dismissed.