Karam Singh vs Amarjit Singh and Others

N.K. Sodhi, J.—This revision petition is directed against the order dated 30.3.1987 passed by the Additional District Judge, Amritsar whereby the first appeal filed before him by the petitioner herein was dismissed as time barred.

Plaintiffs-respondents filed a suit for a declaration to the effect that they along with defendants 3 and 4 in the suit were owners in possession of the land in dispute in equal shares and sought a permanent injunction restraining defendants 1 and 2 from interfering with their possession. The suit was decreed by the trial Court on 18.2.1985. Karam Singh petitioner who is defendant 1 preferred an appeal in the Court of Additional District Judge, Amritsar. There was a delay of two days in filing the appeal. The memorandum of appeal was accompanied by an application u/s 5 of the Limitation Act for condoning the delay. The lower Appellate Court framed an issue whether there were sufficient grounds for condoning the delay. The reason for the delay as mentioned in the application is that the clerk of the counsel through whom the appeal was to be filed had gone out of station and, therefore, the appeal could not be filed on or before 23.3.1985 which was the last date of limitation. The appeal was, however, filed on 26.3.1985 and it was prayed that the delay be condoned. After recording evidence of the parties, the lower Appellate Court took the view that the petitioner was negligent in not filing the appeal within the prescribed period of limitation and consequently dismissed the application for condonation of delay and also the appeal. Hence this revision petition.

Having heard counsel for the parties and after going through the judgment of the lower Appellate Court, I am of the view that the same cannot be sustained. The delay in the instant case was only of two days which in the circumstances ought to have been condoned. The Court below grossly erred in law in not condoning the same. Even if the petitioner or his counsel were negligent, they could be burdened with costs which could have adequately compensated the opposite party.

In the result, the revision petition is allowed and the impugned order passed by the lower Appellate Court set aside. The case is remanded to the Court of Additional District Judge, Amritsar who shall hear and dispose of the appeal on merits in accordance with law. Since the matter has become very old, the Court below is directed to dispose of the appeal within a period of six months. No costs.

Parties through their counsel have been directed to appear before the Additional District Judge, Amritsar on 23.2.1998 for further proceedings.