Sarvan Kumar vs Chuni Lal and Others

Rakesh Kumar Jain, J.—The defendant is in second appeal against the judgment and decree of the Trial Court whereby suit of the plaintiff for specific performance of agreement to sell dated 30.05.1996 has been decreed and appeal filed by the defendant/appellant has been dismissed by the Additional District Judge, Narnaul vide his judgment and decree dated 27.03.2009 on the ground that the appeal has been filed after the expiry of period of limitation.

The only point involved in this appeal is as to "whether the First Appellate Court should have condoned the delay of 10 days in filing of the appeal for the reasons assigned in the application."

The appellant had filed the appeal along with an application u/s 5 of the Limitation Act, 1963 [for short "the Act"] in which it was averred that the judgment and decree was passed by the Trial Court on 05.12.2005. Certified copy of the judgment and decree was applied on the same day through his Advocate and was delivered on 07.12.2005. On 08.12.2005, his Advocate had sent message to him, but it was not conveyed. On 05.01.2006, when his Advocate informed the appellant to visit his office for the purpose of preparation of grounds of appeal, he asked the appellant for the court fee also, but that was not readily available with the appellant. According to the appellant, he borrowed money from his relations on 15.01.2006. The stamps were purchased on 18.01.2006 and the appeal was filed thereafter. In this process, delay of 10 days had occurred in filing of the appeal which has not been condoned by the First Appellate Court while relying upon a Division Bench judgment of this Court in the case of Kulwant Kaur v. State of Punjab. 1999(1) RCR (Civil) 474.

Learned Counsel for the appellant submits that the delay was not intentional or deliberate but was a bona fide delay as in order to file the appeal he required court fee of a sum of Rs. 16,170 which was not readily available with the appellant. The question, thus, arises that in such circumstances, the delay should have been condoned or not? In the case of Kulwant Kaur (supra), there was a delay of 576 days in filing of the appeal. The appeal was dismissed by the Division Bench of this Court because the reason assigned was that the appellant had no money to meet the expenses of filing of the appeal before this Court against the award of the Motor Accident Claims Tribunal. The said ground was not found to be justifiable for condoning the delay of 576 days in filing of the appeal. Learned Counsel for the appellant has, however, relied upon a judgment of this Court in the case of Punjab State Electricity Board and Anr. v. Pritpal Kaur and Ors. 2007(4) RCR (Civil) 463 to contend that mere negligence cannot be treated as lack of sufficient cause and the Court should be liberal in condoning the delay unless it is found that there was any lack of bona fide or was as dilatory tactics.

In my view, both the judgments are not applicable in the facts and circumstances of the present case and the application has to be allowed on the facts available therein. The conduct of the applicant is to be seen for the purpose of considering his application for condoning the delay. Admittedly, the judgment and decree was rendered on 05.12.2005. On the same day, certified copy was applied. It was delivered on 07.12.2005 and the counsel appearing on behalf of the appellant had promptly informed him on 08.12.2005 about decision of the Court but the message could not be conveyed to him. Then, when he visited the counsel for filing of appeal, he was apprised of the payment of court fee for the purpose of hearing of appeal. At that time, the appellant had no money with him which was arranged by him within a period of 10 days from his relations and these 10 days became fatal as the appeal is said to have been delayed by 10 days only.

In my view, the facts and circumstances narrated in the application are sufficient to condone the delay of 10 days in filing of the appeal. Hence, I set aside the judgment and decree dated 27.03.2009 passed by the First Appellate Court. The application for condoning the delay of 10 days in filing of the appeal is allowed and the matter is remanded back to the First Appellate Court to decide the appeal on merits. The parties, through their counsel, are directed to appear before the First Appellate Court on 04.10.2010.