Partap Chand vs Nasibo Devi

Sanjay Karol, J.—In this petition, filed under Article 227 of the Constitution of India, petitioner Partap Chand, who is the defendant before the Court below, has assailed the order dated 10.3.2008, passed by Additional District Judge (1), Kangra at Dharamshala, Himachal Pradesh, in CMA No. 5-P/05, titled as Pratap Chand v. Nasivo Devi, whereby application filed under the provisions of Section 5 of the Limitation Act, seeking condonation of delay in filing the appeal, stands dismissed.

Plaintiff Nasibo Devi (respondent herein) filed a suit for declaration with consequential relief of permanent prohibitory injunction against defendant Partap Chand. The challenge was with regard to Will dated 20.9.2000, executed by Chuhru in favour of Pratap Chand. Significantly, in the said proceedings, despite service, defendant chose not to contest and as such was proceeded ex-parte. Trial Court, based on the evidence, so led by the plaintiff, decreed the suit as under:

Consequently, it is held that the plaintiff in view of the Will dated 3-12-1997 (Ex. PW3/B) executed by late Sh. Chuhru Ram has become owner and is also in possession of the land to the extent of 119/1008 share of Khata No. 33, Khatauni No. 110 to 116, Khasra Kita 31, measuring 0-27-24 hectares, and that of the land to the extent of 119/2016, of Khata No. 34, Khatauni Nos. 117 to 122, Khasra Kita 15, land measuring 0-18-63 hectares, and of the land to the extent of 1/6 share comprised in Khata No. 54, Khatauni Nos. 191, 192, Khasra Kita 2, land measuring 0-01-24 hectares, situated at Mohal Tanda, Mouza Darang, The Palampur, Distt. Kangra (H.P.). Further, it is declared that the Will dated 3-10-1998 in favour of the defendant is held to be null and void and not binding on the plaintiff. By way of consequential relief, the plaintiff is further granted the relief of permanent injunction and the defendant is restrained from changing the nature of the suit land, with costs. Decree sheet be prepared accordingly. File after due completion be consigned to the record room.

Challenging the judgment and decree, defendant filed an appeal, alongwith an application under the provisions of Section 5 of the Limitation Act, seeking condonation of delay.

Delay of 31/2 years is substantial. Having heard learned counsel for the parties and perused the material so made available during the course of hearing, in my considered view, delay remains unexplained.

Despite publication in the gazette, defendant, who is an educated person and a Government employee, chose not to contest the suit. As such, no ground for interference is made out.

Hence, the impugned order cannot be said to be unreasonable, illegal or perverse, warranting interference by this Court.

For all the aforesaid reasons, present petition, devoid of merit, is dismissed.

Petition stands disposed of, so also pending application(s), if any.