Sujan Singh and Others vs Rachhpal Singh

Rajiv Sharma, J.

CMP (M) No. 890/2010

This application has been filed u/s 5 of the Limitation Act for condonation of delay in filing the regular second appeal. "Key facts" necessary for adjudication of this application are that the appellants/applicants have filed regular second appeal before this Court against judgment and decree dated 27.3.2009 rendered by learned Additional District Judge (2) Kangra at Dharamshala in Civil Appeal No. 147-N/2003. As per report of the Registry, the appeal is barred by 227 days. Hence, this application.

According to the applicants, the appeal was decided by the learned Additional District Judge on 27.3.2009. Certified copy of judgment of the first appellate court was applied on 28.3.2009 and the same was received by the applicants on 18.4.2009. Thereafter, one of the applicants, Bhag Singh visited Shimla in the month of July 2009. He was told by his counsel that the appeal could not be filed without certified copy of the trial court judgment. The certified copy of trial court judgment was applied for by the applicants on 25.7.2009. It was prepared on 17.8.2009 and was supplied to the applicants on 22.8.2009. The brief including judgment of the first appellate court was lost at Nurpur Civil Court Complex and the same was found only on 11.1.2010. Thereafter, the applicants contacted their counsel at Tehsil Nurpur on 12.1.2010. The applicant, Bhag Singh contacted the counsel at Shimla, but his counsel had already booked his tickets to South India w.e.f. 17.1.2010 till 7.2.2010. The applicant, Bhag Singh, has also filed supplementary affidavit on 19.7.2011. The respondents/non-applicants have filed a detailed reply to the same. According to the averments contained in the reply, Execution Petition No. 13/2009 was filed by the respondents for execution of judgments and decrees passed by both the courts below. Notices were issued to the applicants in the month of September 2009. Thereafter, the regular second appeal was filed by the applicants. It is further averred in the reply that one of the applicants, namely, Sujan Singh had given statement before the learned Civil Judge (Jr. Divn.) Court No. 2, Nurpur, District Kangra, H.P., that the applicants had preferred an appeal before this Court against the judgment and decree passed by the first appellate court and the ad-interim order was passed in favour of the applicants. The statement of Sujan Singh was recorded on 7.12.2009. This Court framed following issues on 4.4.2012:

Whether the applicants/appellants had sufficient cause for not preferring the appeal within the time prescribed by law? OPA.

Relief.

The evidence of the parties was recorded by this Court on 17.9.2013.

Mr. Naresh Kaul, Advocate, has vehemently argued that there are sufficient grounds for condonation of delay in filing the regular second appeal. He then contended that liberal view be taken since the appeal is barred by only 227 days.

Mr. Rahul Mahajan, Advocate, has vehemently argued that the applicants have not explained the delay satisfactorily. According to him, plea taken by the applicants for the condonation of delay in filing the regular second appeal is not bona fide.

I have heard learned counsel for the parties and have also gone through the pleadings carefully.

What emerges from the facts enumerated hereinabove is that the first appellate court rendered the judgment on 27.3.2009. Certified copy of the judgment of the first appellate court was applied for on 28.3.2009. It was received by the applicants on 18.4.2009. The regular second appeal was required to be filed within 90 days after excluding period spent for obtaining the certified copy of the judgment. Plea of the applicants that the appeal could not be filed since certified copy of the learned trial court was not available is an afterthought. Certified copy of the trial court judgment was applied for on 25.7.2009. It was prepared on 17.8.2009 and was supplied to the applicants on 22.8.2009. The regular second appeal has been filed on 17.2.2010. The plea raised by the applicants that the certified copy of the first appellate court judgment was lost at the Civil Court Complex, Nurpur is also not believable.

One of the applicants, Bhag Singh appeared as AW 1. According to him, in the month of October 2009 brief was lost and it was found in the month of January 2010. This version is not believable. According to AW 2 Harvinder Singh, applicant Bhag Singh had forgotten his brief in his shop. The applicant Bhag Singh came back in the month of January 2010 and he handed over the brief to him. In case Bhag Singh had actually forgotten his brief, AW 2 Harvinder Singh would have definitely contacted the applicant Bhag Singh since his address was written on the brief. The applicants have also remained negligent even after receipt of the certified copy of the trial court judgment on 22.8.2009. He has not placed on record any document to show that his counsel had gone to South India w.e.f. 17.1.2010 till 7.2.2010.

The conduct of the applicants is also not proper. One of the applicants, Sujan Singh, had given a statement before the executing Court that they had filed a regular second appeal against the judgment and decree dated 27.3.2009 before this Court and the ad-interim order had been passed. This statement was made by him on 7.12.2009. This statement is factually incorrect and the applicants have definitely tried to mislead the Court. The regular second appeal in fact was filed on 17.2.2010.

AW 1 Bhag Singh admitted his signatures on his statement Ext. AW 1/A. It is true that the court should be liberal while considering the application for condonation of delay, but the rights accrued to the opposite party are also required to be taken into consideration. The grounds taken by the applicants in the application are bereft of any truthfulness. The grounds mentioned are not sufficient to condone the delay. The averments made in the application are also not bona fide. The applicants were thoroughly negligent in prosecuting their cause.

Their Lordships of Hon''ble Supreme Court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, have held that even though a liberal and justice oriented approach is required to be adopted in the exercise of power u/s 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment. Their Lordships have further held that if the explanation given by applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. Their Lordships have held as under:-

What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power u/s 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

In view of the discussions and analysis made hereinabove, there is no merit in the application and the same is dismissed accordingly.

RSA No. 426/2010

In view of dismissal of CMP(M) No. 890/2010, the regular second appeal is dismissed. Pending application(s), if any also stands disposed of. No costs.