Kesar Singh vs Hans Raj and Others

Ashok Bhan, J.—Plaintiff-petitioner (hereinafter referred to as "the petitioner") filed a suit for declaration that the promotion of defendant-respondent No. 1 Hans Raj (hereinafter referred to as "respondent No. 1") as Superintendent Grade-IV is illegal, against rules and liable to be struck down and further to promote the petitioner as Superintendent Grade-IV with effect from 14.3.1980 with all the benefits accruing as a result thereof. State of Punjab contested the claim of the petitioner and filed its written statement. Respondent No. 1 was served and put in appearance and made a statement that he adopts the written statement filed by the State of Punjab. Thereafter, respondent No. 1 did not put in appearance. Trial Court partly decreed the suit filed by the petitioner on 24.3.1994. It was held that promotion of respondent No. 1 as Superintendent Grade IV was illegal and against the rules. Promotion of respondent No. 1 as Superintendent Grade IV was set aside. Further, a direction was issued to the respondent - State to consider The case of the petitioner for promotion to the post of Superintendent Grade-IV.

No appeal was filed by the State of Punjab against the judgment and decree of the trial Court. In pursuance to the decree passed by the trial Court, respondent No. 1 was reverted on 19.9.1994 and the petitioner was promoted as Superintendent Grade IV in his place. Having come to know about the passing of the decree,, respondent No. 1 applied for a certified copy of the judgment and decree passed by the trial Court on 20.9.1994, which was supplied to him on 23.9.1994 and immediately thereafter, he filed an appeal along with an application u/s 5 of the Limitation Act, 1963-(hereinafter referred to as "the Act") for condonation of delay in filing the appeal. The plea taken in the application filed u/s 5 of the Act was that he had asked the government Pleader, who was appearing for the State of Punjab, to inform him about the result of the suit and the Government Pleader did not inform him about the passing of the decree and as soon as he came to know about the decree on his reversion on 19.9.1994, he filed the appeal without any delay. This application for condonation of delay in filing the appeal was contested by the petitioner. Lower Appellate Court accepted the application filed by respondent No. 1 for condonation of delay and held that respondent No. 1 depended upon the assurance given by the Government Pleader that he would inform him about the result of the suit; that the Government, Pleader did not inform him about the result of the suit and, therefore, respondent No. 1 did not come to know about the decision of the trial Court and hence, there was sufficient cause for condoning the delay in filing the appeal. The delay in filing the appeal was condoned subject to payment of Rs. 500/- as costs.

Aggrieved against the aforesaid order of the Lower Appellate Court, present revision petition has been filed.

Notice of motion was issued. This revision petition, is being disposed of at the motion stage.

Counsel for the parties have been heard.

The main plea of the counsel for the petitioner is that the Lower Appellate Court has condoned the delay in filing the appeal, without recording a cogent finding that respondent No. 1 had made out a sufficient cause for condoning the delay in filing the appeal; that the Government Pleader could not have appeared for a private party in the suit and it was not obligatory or a part of his duty to inform a private party about the decision in the suit.

As against this, the plea taken by the counsel for respondent No. 1 is that the Government Pleader had agreed to inform respondent No. 1 about the decision by the trial Court and, since, the Government Pleader failed to inform respondent No. 1 about the result of the suit, there was a sufficient cause for condonation of delay in Tiling the appeal and that respondent No. 1 filed the appeal without losing any time after he came to know about the decree passed in the suit.

Respondent No. 1 has failed to affirmatively show that he had acted bona fide and that he had been assured by the Government Pleader to inform him about the result in the suit. In fact, he did not persue the matter and left the same to be persued by the State of Punjab. Respondent No. 1 was negligent in not persuing the matter and it is he alone who has to suffer for his negligence. Respondent No. 1, after making a statement in the Court that he adopts the written statement filed by the State of Punjab, did not persue the matter any further. He did not contest the suit thereafter till the decision. Respondent No. 1 himself evaded his responsibility of contesting the suit and relied upon the respondent - State in defending the case. No sufficient cause has been shown by respondent No. 1 for condoning the delay of more than 150 days in filing the appeal. No doubt, Court can take a liberal approach in condoning the delay, but the liberal approach cannot be adopted as a matter of routine. In this case, the Lower Appellate Court has condoned the delay of more than 150 days without any sufficient cause, whereas the respondent No. 1 was required to explain the delay in filing the appeal for each day which he has miserably failed to do.

For the reasons stated above, this revision petition is accepted. Order of the Lower Appellate Court is set aside. The application filed by respondent No. 1 for condonation of delay in filing the appeal is dismissed. No costs.