Shakeel Ahmad and Others vs Yameen (D) through L.Rs. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the Defendants Appellants on delay condonation application and perused the record.

Before dealing with delay condonation application it would be appropriate to give background of the case.

Original Suit No. 105 of 2001 was filed by the Plaintiffs Respondents for permanent prohibitory injunction against the Defendants Appellant and proforma Respondent for restraining them from interfering with the Plaintiffs alleged possession over two biswas land situate in khasra plot No. 2248/2 at Mohalla Chainpuri, Town Hapur, district Ghaziabad.

The suit was contested by filing written statement by the Defendants. By judgment and decree dated 2.8.2002, the trial court dismissed the suit. Civil Appeal No. 187 of 2002 filed by the Defendants Appellant was also dismissed ex parte on 31.5.2008 by the lower appellate court. It also appears from the record that Civil Appeal No. 187 of 2002 was admitted for hearing by the District Judge, Ghaziabad, temporary injunction was refused by the same order.

The contention of learned Counsel for the Appellants on the delay condonation application is that the Appellants appeared through their counsel Sri Shyam Veer Singh Sirohi, Advocate Civil Court, Hapur on 30.11.2005. who was instructed to defend the case but except on 30.11.2005 and thereafter on 20.1.2006, he did not appear on any other date when the case was fixed on 21.3.2006, 18.5.2006, 17.10.2006, 19.12.2006, 16.3.2007. 25.4.2007. 24.7.2007, 12.9.2007, 16.11.2007, 3.1.2008, 20.2.2008, 9.4.2008, 9.5.2008 and 31.5.2008.

In paragraph 9 of the affidavit filed in support of the delay condonation application wherein it has been averred that Sri Shyam Veer Singh Sirohi, counsel instructed by the Appellants before the lower appellate court did not appear after 20.1.2006 and also did not communicate the result when hearing of the case concluded and judgment was delivered. It is stated that in fact their counsel never apprised the Appellants of the fact that the appeal had proceeded ex parte from 9.4.2008 and an ex parte judgment was delivered on 31.5.2008 against the Appellants. It is also stated that the Appellants came to know only on 16.3.2010 about the judgment when the Plaintiffs Respondents attempted to raise constructions over the suit property and thereafter the Appellants promptly got the file of the lower appellate court inspected on 17.3.2010. Thereafter, they took advice from different counsels at Hapur, Ghaziabad and filed this second appeal challenging the validity and correctness of the judgments and decrees of the courts below aforesaid.

A perusal of the delay condonation application shows that the Appellants were negligent in pursuing their case. They never inquired what the counsel was doing from 2006 when their counsel did not apprise about the proceedings w.e.f. 20.1.2006 up to 31.5.2008. The Appellants are also residents of Phoolgarhi Kasba Hapur, Pargana and Tehsil Hapur, District Ghaziabad where the appeal was going on. Merely making allegations against the counsel by the Appellants that he did not appear in the case in spite of having instructed by them and providing vague reasons for not pursuing their appeal is not sufficient for condoning the laches. A litigant has to be vigilant and if the counsel did not appear for any reason whatsoever for such a long time about more than 2 years in the instant case. If instruction is not followed by the counsel they should have taken remedial steps during the pendency of the appeal even otherwise.

This second appeal has been filed on 19th May, 2010 and as per report of the Stamp Reporter would have been in time up to 29.8.2008. The appeal is barred by time by 263 days for which the vague explanation given by the Appellants in affidavit filed along with delay condonation application is not found sufficient.

For the reasons stated above, the delay condonation application is accordingly rejected. The appeal suffers from laches and is accordingly, dismissed.