Usha Diwan vs Ashok Kumar

V.K. Jhanji, J.—This civil revision has been directed against the order of the Additional District Judge, Yamuna Nagar at Jagadhari dismissing the application of the petitioner for condonation of delay in filing the first appeal.

RespondentAshok Kumar filed a suit against Diwan Jawala Sahai for dissolution of partnership and rendition of accounts of the firm M/s. Indian Iron and Electrical Works, Paonta Sahib. The suit was decreed by the trial Court on 14.8.1980 whereby preliminary decree was passed the Local Commissioner was appointed to go into the accounts of the partnership. Diwan Jawala Sahai died on 3.9.1985 and thereafter his legal representatives (petitioner and respondent No. 2 herein) Shrimati Usha Diwan wife of Late Diwan Jawala Sahai and daughter Melu Vig were brought on record. The trial Court, after deciding the objections of the petitioner, passed the final decree on 14.9.1987. Petitioner applied for certified copy of the judgment and decree on 15.9.1987 which was prepared on 19.10.1987 and appeal in this Court was filed on 28.11.1987 in forma pauperis. When the application for forma pauperis came up for consideration before M.R. Agnihotri, J. on 28.1.1988, the following order was passed :

"Present : Mr. A.C. Jain, Advocate.

On the request of the learned counsel for the appellant, it is directed that the memorandum of appeal be returned to the learned counsel for being presented in the proper Court. The learned counsel apprehends that since he has been pursuing the appeal in a wrong Court, probably he would be confronted with the objection with regard to limitation. This objection will be considered by the District Judge, Ambala, at the time of presentation of the appeal."

In pursuance of the order of this Court, memorandum of appeal was returned to be filed in a proper forum and thus memorandum of appeal was filed before the District Judge, Ambala, on 3.2.1988. Since the appeal had been preferred in forma pauperis, application for forma pauperis was considered and it was found that the appellant was not an indigent person and therefore, her application was dismissed. However, time was allowed to make up deficiency in courtfee. Deficiency in courtfee was made good on 23.3.1991 and thereafter the learned Additional District Judge proceeded to decide the application was dismissed by the learned Additional District Judge, as he was of the view that the petitioner had not filed appeal before the Court of Additional District Judge within limitation and filing of first appeal in the High Court was a tactical move to make out a case for condonation of delay. This view he took primarily on the ground that affidavit of counsel who filed appeal in the High Court had not been filed. This order is now being challenged by the petitioner by way of the present civil revision.

Learned counsel for the respondent has raised a preliminary objection that after the passing of the order dismissing the application for condonation of delay, the learned Additional District Judge also dismissed the appeal and a decree has been drawn and, therefore, no revision lies. He further contended that remedy, if any, before the petitioner was to file a Regular Second Appeal against the decree. I am afraid to accept this contention of learned counsel for the respondent in view of the Division Bench judgment of this Court as reported in 1985 PLJ 442 : 1985 R.R.R. 195 (Des Raj v. Om Parkash and Bidar Lal) wherein it was held that where application for condonation of delay is dismissed, question of registration of appeal and its consideration does not arise. Therefore, the order of dismissal does not amount to affirmance of decree of trial Court and therefore not a decree within the meaning of Section 2(2) of Code of Civil Procedure.

After hearing the learned counsel for the parties at length, I am of the considered view that this civil revision deserves to succeed. From the facts narrated above and admitted by counsel for the parties, it is not proved that there was gross negligence or deliberate in action or lack of bona fide on the part of the petitioner to file appeal before this Court when the same was maintainable only before the District Judge. The appeal was filed by Shri A.C. Jain and Shri Brij Raj Sharma, Advocates, and therefore it can be safely inferred that the petitioner must have been advised to file appeal in the High Court and on the mistaken advice of counsel, she filed appeal in this Court. There was no delay to present the memorandum of appeal before the District Judge, Ambala once the same was ordered to be returned by this Court to file it before the proper Court. Memorandum of appeal was returned on 28.1.1988, and the same was filed on 3.2.1988 when the Court reopened after vacations on 29.1.1988, 30.1.1988, 31.1.1988, 1.2.1988 and 2.2.1988. The very fact that the petitioner paid huge amount as courtfee on the memorandum of appeal shows that she was serious in prosecuting her appeal and there was no deliberate attempt to delay the decision of appeal on merits. Learned counsel for the respondent has failed to point out as to how the petitioner would have benefited by lodging the appeal late. There is also no merit in the contention of learned counsel for the respondent that this Court cannot reappraise evidence in revisional jurisdiction. This Court is not reappraising the evidence but on the admitted facts, I find that the learned Additional District Judge while deciding the application did not apply the settled judicial principles for excusing the delay.

Consequently, this civil revision is allowed. The order of the trial Court is set aside and the application of the petitioner for condonation of delay is allowed subject to payment of Rs. 1,000/ as costs which shall be paid by the petitioner to respondent No. 1 before the learned Additional District Judge. On payment of costs, the learned Additional District Judge shall register the appeal and decide the same in accordance with law.

Parties through their counsel are directed to appear before the learned Additional District Judge, Yamuna Nagar at Jagadhri on March 9, 1992.