Ramesh Chand vs Amar Nath and Others

Dharam Chand Chaudhary, J.—One of the defendants, i.e., defendant No. 3 Ramesh Chand is in second appeal before this Court. He is aggrieved by the judgment and decree passed on 11.4.2014, by learned Additional District Judge, Hamirpur Camp at Bhoranj, in Civil Appeal No. 13 of 2013, RBT No. 93/2013, whereby the judgment and decree passed by learned Civil Judge (Senior Division), Court No. 1, Hamirpur, in Civil Suit No. 247 of 2004 has been affirmed.

As a matter of fact, the plaintiff has filed a suit for the fixation of boundary by way of demarcation with consequential relief of permanent prohibitory injunction. Learned trial Court has decreed the suit for the relief of permanent prohibitory injunction and ordered to restrain the appellant-defendant No. 3 from raising any further construction or changing the nature of the suit land and interfering therewith in any manner whatsoever. Defendant No. 3 was further directed to pay Rs. 1,00,000/- as damages to the plaintiff for construction of retaining wall, which was forcibly dug by the defendants. Feeling aggrieved by the said judgment and decree, appellant-defendant No. 3 has filed the appeal before learned lower appellate Court, which has been dismissed by the judgment and decree under challenge in the present appeal.

This appeal is barred by 219 days. The only explanation as set forth in the present application is that the applicant-appellant being simpleton and semiliterate, was under bona fide impression that after obtaining the certified copies of judgment and decree there was ample time for filing appeal. When in the month of October, 2014 he came to Shimla for filing the appeal found that the High Court was closed due to Dussehra holidays, hence could not contact his Counsel whose office lying locked. Thereafter he returned to his native place and in the meanwhile the entire brief was misplaced somewhere and could only trace out the same in the first week of March, 2015. Thereafter he came to Shimla and promptly filed the appeal with the present application.

The respondents when put to notice have contested the application. They have come forward with the version that sufficient cause has not been shown from the perusal of the application, warranting the condonation of inordinate delay as occurred in filing the appeal. The appellant remained negligent throughout and the delay is not bona fide. The application has, therefore, been sought to be dismissed.

In rejoinder, the appellant has reiterated what he averred in the application.

Having gone through the material available on record and taking into consideration the arguments addressed on both sides, it would not be improper to conclude that what to speak of sufficient cause, appellant-defendant No. 3 has failed to make out any ground warranting the condonation of delay of 219 days having occurred in filing the appeal.

The judgment and decree under challenge has been passed by learned lower appellate Court on 11.4.2014. Appellant-defendant No. 3 was duly represented by a Counsel. It can reasonably be believed that he was advised by learned Counsel representing him in the lower appellate Court to file the appeal well within limitation.

This Court in Dr. Rakesh Dhiman v. Rajesh Gupta & others, Latest HLJ 2015(HP) 670, a case of identical facts has held as under:

"5. On hearing learned counsel on both sides and going through the record, I find the present a case where sufficient cause has not been shown for condonation of an inordinate delay of one year, two months and four days. The explanation as set-forth in the application and also rejoinder to the reply filed on behalf of the applicant/appellant that it is learned counsel representing him in the learned lower appellate Court, who failed to inform about the dismissal of the appeal he preferred. The plea so raised without any proof cannot be believed to be true. In order to succeed on this ground, the applicant/appellant should have filed affidavit of learned counsel representing him in the lower appellate Court in this regard. No such proof, however, could be produced, irrespective of more than sufficient opportunities granted for the purpose. On the other hand, expiry of the period prescribed for filing an appeal against the judgment and decree under challenge has accrued a valuable right in favour of the non-applicants/respondents. Such right cannot be taken away without the applicant having shown sufficient cause, warranting the condonation of delay. It is well settled that the law of limitation may be harsh to a party, however, has to be applied with all rigor and the delay should only be condoned in a case where sufficient cause is found to have been shown."

The point in issue in this case is squarely covered by the ratio of the judgment ibid because here also sufficient cause warranting to take away the valuable right accrued in favour of the respondents on the expiry of the time prescribed for filing the appeal is not found to have been shown from the record. There is no proof that the applicant-appellant visited Shimla during Dussehra holidays and found the office of learned Counsel locked. The affidavit of learned Counsel should have been filed to substantiate such averments in the application. The explanation as set forth that the documents misplaced in his house somewhere on his return also seems to be palpably false. The present, therefore, is a case where the applicant-appellant has failed to show sufficient cause for condonation of 219 days delay as occurred in filing the appeal.

Even on merits also, no case in favour of the applicant-appellant (defendant No. 3 in the trial Court) is made out for the reason that it is proved from the report of Local Commissioner Ext. OW-1/A that while constructing the road to his house over land bearing Khasra No. 554 he has made the cutting of his land in a way posing thereby damage to the house of the plaintiff which admittedly has been constructed over the adjoining land bearing Khasra No. 553. The Local Commissioner has even found a small portion of the land of the plaintiff having been encroached by the defendant while making cutting to construct a road leading to his house which has been denoted in the Aks Tatima Ext. OW-1/D and Ext. OW-1/E. The Local Commissioner is categoric while stating that in case the retaining wall is not constructed from portions ''J'' to ''K'' as shown in the Tatima to protect the suit property damage is likely to be caused thereto. Both Courts seem to have appreciated the report of the Local Commissioner and other evidence available on record in its right perspective. Therefore, no question of law muchless to speak of substantial questions of law as mentioned in the memorandum of appeal arises for adjudication in the case in hand.

In view of what has been said hereinabove, this application being without any merits is dismissed. Consequently, the appeal which is time barred also stands dismissed.