State of Haryana vs Smt. Kamla Devi and Another

N.K. Kapoor, J.—This appeal is against the judgment and decree of the Additional District Judge dated 9.3.1993 whereby the appeal was dismissed being barred by limitation.

Plaintiff filed a suit for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the courtyard as shown in the site plan attached with the plaint. The claim of the plaintiff was resisted by the defendants on a number of grounds. On the pleadings of the parties a number of issues were framed and the trial Court on the basis of evidence led found merit in the plea of the plaintiff and so granted the decree as prayed for. Dissatisfied with the decision of the trial Court, the defendants, filed an appeal after the expiry period of limitation. To cover up this lapse, an application for condonation of delay was filed alongwith the appeal. The Additional District Judge chose to examine this application on merit after the appearance of the respondent. Since no evidence was led, the Court found no valid ground to condone the same and so dismissed the appeal being barred by time.

Learned counsel for the appellant in all fairness conceded that no plausible explanation has been given for not examining any one of the functionary to explain the delay in filing the appeal, yet urged that the matter needs to be examined more sympathetically for the reason that slight delay in prosecuting the matter does occur in view of the exigencies of service. Explaining, the learned counsel for the State urged that at times the concerned person proceeds on leave without informing the person incharge with regard to the urgency of the matter especially with regard to the filing of the cases within the period of limitation prescribed. Since the matter has not been examined by the Additional District Judge on merit, the appellant stands prejudiced and so the order deserves to be set aside granting an opportunity to the appellant to explain this short delay of 19 days.

This has been resisted by the counsel for the respondent. According to the counsel, an opportunity had been granted to the appellant to lead evidence in support of the application for condonation of delay. Since no evidence was led, the Court had no option but to decline the application. Thus, there is no illegality in the order passed by the Additional District Judge.

I have heard learned counsel for the parties and perused the impugned order passed by the Additional District Judge. There is no denying the fact that the appeal was filed after the expiry of period of limitation and even when the Court directed the appellant to lead evidence, no evidence was led. It has, however, come to my notice that no reply has been filed by the respondent to the application for condonation of delay. In the absence of any such contest, the averment made in the application which is duly accompanied by an affidavit could be accepted by the Court. In any case, the appellant, in fact, defaulted in not leading any evidence in support of the application for condonation of delay. Taking a lenient view of the matter and also the fact that valuable right of the State is involved. I accept the appeal, set aside the order of the Additional District Judge dated 9.3.1993 and remand the case to the Additional District Judge shall grant one opportunity to the appellant to adduce all evidence in support of the plea for condonation of delay and if found sufficient, condone such delay and hear the appeal on merit. The parties are directed to appear before the Additional District Judge, Ambala, on 10.8.1995.