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2000 DIGILAW 80 (HP)

MOHINDER SINGH v. RULIA

2000-04-11

M.R.VERMA

body2000
JUDGMENT (M.R. Verma, J.): This revision petition is directed against the order dated 13.2.1998 passed by the learned Additional District Judge, Mandi whereby he has allowed the application of the respondent under Section 5 of the Limitation Act for condonation of delay in filing Cross-Objection No. 1 of 1991 in Civil Appeal No. 46 of 19b. 2. Brief and undisputed facts are that the petitioner filed a Civil Appeal No. 46 of 1990 against the respondent and others which were assigned for disposal to learned Additional District Judge, Mandi. Notices of the appeal were ordered to be issued and service of such notice was effected on the respondent on 25.7.1990, admittedly during the period when the courts at Mandi were closed for Summer Vacations till July 31, 1990. The respondent filed cross-objection on August 28, 1990 when it was directed that the same be put up with the main file on 1.10.1990. It appears that the cross-objections were not put up before the court on 1.10.1990 nor the appeal was so put up on the said date. In the absence of the parties, orders dated 3.10.1990 were passed directing putting up of the cross-objections with the main file. The main file was to come up before the learned Additional District Judge on 14.4.1991 but the Presiding Officer was on leave on the said date. The matter thereafter remained pending for service of the respondents and mostly for arguments till 26.9.1997 when arguments were partly heard and were concluded on 17.10.1997. The matter was thereafter listed for orders on different dates. However, on 5.12.1997 respondent sought time to file an application under Section 5 of the Limitation Act which was filed on 12.12.1997. The application was contested by the petitioner and on the basis of the contents of the application and the reply thereto, the learned Additional District Judge framed the following issues: "1. Whether the cross-objection of respondent Rulia are not maintainable? OPD 2. Whether there are sufficient grounds for condonation of delay in filing the cross-objection? OPR. 3. Relief." 3. The application was contested by the petitioner and on the basis of the contents of the application and the reply thereto, the learned Additional District Judge framed the following issues: "1. Whether the cross-objection of respondent Rulia are not maintainable? OPD 2. Whether there are sufficient grounds for condonation of delay in filing the cross-objection? OPR. 3. Relief." 3. After affording opportunity to the parties to lead evidence in support and rebuttal of the aforesaid issues and finally hearing them, the learned Additional District Judge by the impugned judgment, deferred the decision on issue No. 2 to be taken at the time of hearing of the appeal and decided issue No. in favour of the respondent and accordingly allowed the application by the impugned order, hence the present revision petition by the petitioner. 4. I have heard the learned Counsel for the parties and have also gone through the records. 5. In exercise of its revisional jurisdiction, High Court will vary or reverse an order passed by a subordinate Court if such subordinate Court has: (i) exercised a jurisdiction not vested in it, or (ii) failed to exercise a jurisdiction vested in it, or (iii) acted in the exercise of its jurisdiction illegally or with material irregularity, and (iv) if such order is allowed to stand, it will occasion a failure of justice or irreparable injury to the party against whom it is made. 6. This is not a case of failure to exercise jurisdiction vested in the lower appellate Court nor is it a case of exercising jurisdiction not vested in it. According to the learned Counsel for the petitioner, it is a case of exercise of its jurisdiction by the lower appellate Court illegally and in any case with material irregularity resulting in failure of justice. It was contended for the petitioner that cross-objections were time barred, application for condonation of delay in filing the Cross-objections was not only filed after about 7 years but was filed, entertained and allowed after final arguments had been heard and the case was being repeatedly lists for judgment. It was further contended that the delay has been condoned on the ground that is advice given by counsel, which was neither pleaded nor proved. 7. It is true that the application for condonation of delay in filing the cross objections was moved after about 7 years of filing of such objections. It was further contended that the delay has been condoned on the ground that is advice given by counsel, which was neither pleaded nor proved. 7. It is true that the application for condonation of delay in filing the cross objections was moved after about 7 years of filing of such objections. The fact however, remains that the objections had been filed much earlier and there was delay of only 3 days in filing such objections. Since the appeal along with which these objections were tagged, was repeatedly adjounred for arguments, therefore, the question of the objections being time barred appears to have cropped up at the stage of arguments. This conclusion is strengthened by the fact that in the written arguments dated 24.10.1997 filed by the petitioner the lower appellate court there is specific objection taken therein that the "Cross-objections are without limitation and cannot be considered." It also reveals that "the respondent when filing the cross objections have not filed any application for condonation of delay......." The respondent in his written arguments dated 24.10.1997 to meet the objections aforesaid, averred that "cross objections could not be filed due to Vacation, that the Court has the discretion to grant time for filing such objections and that in view of the provisions of Order 41 Rule 33 C.P.C. (?) Cross Objections are not needed to be filed." It is, thus, clear that the question as to the limitation regarding filing of the cross objections arose at the time of hearing. To supply the omission in filing the application for condonation of delay, which could otherwise be condoned even on oral prayer, the respondent filed the requisite application before the passing of the judgment. Therefore, there is nothing illegal in entertaining the application for condonation of delay by the lower appellate Court irrespective of the stage and the time which has elapsed when it was filed. By virtue of the provisions of Order 41 Rule 22 of the Code of Civil Procedure, the memorandum of objections is though required to be filed within a month of the service of notice of date of hearing of the appeal and the Court has the power to extend the period to file such objections. Such extension of time is permissible even after filing of cross objections, though it has to be granted judiciously and on sufficient cause having been shown. 8. Such extension of time is permissible even after filing of cross objections, though it has to be granted judiciously and on sufficient cause having been shown. 8. The appellate Court, after framing the relevant issue, had given opportunity to the parties to lead evidence which was led by them. The delay of three days in filing the memorandum of objections is sought to be explained Ion the ground that the applicant was under the bonafide impression that the [objections could be filed within one month after the re-opening of the Court (after Summer Vacations. There is no dispute that notice of appeal was received by the respondent during Vacations. The respondent is an illiterate person as stated by him on oath. He had gone to the Advocate on the day next (sic) day of receipt of notice of appeal when he was informed of Vacations and was advised to contact the Advocate on re-opening of the court. He then contacted the Advocate on 27.8.1990. He has further stated that he did as advised by his Advocate and being illiterate, he does not know anything. The lower appellate Court on this version has observed that the respondent was advised by his counsel that objections could be filed within 30 days from the date of re-opening of the court. True that it is not specifically so stated by the respondent but his statement has to be read as a whole. On the next day of the receipt of notice of the appeal he contacted his counsel. He claims to be illiterate. It is specific in his statement that he acted as advised by his counsel. An illiterate persons conception and impression about limitation can be what he must have learnt from his counsel. This conclusion is strengthened by the fact that the counsel, who represented the respondent before the lower appellate Court, presumably had no clear conception about limitation for filing the memorandum of objections. Had it been otherwise, in all probabilities, the memorandum would have been filed by him along with application for condonation of delay and would not have argued that point of limitation in the manner as already stated here-in-above. Thus, the conclusion of the lower appellate Court that "the respondent No. 1 appeared to have acted on the advice of his counsel" is probable on the facts and circumstances of the case and the material on record. Thus, the conclusion of the lower appellate Court that "the respondent No. 1 appeared to have acted on the advice of his counsel" is probable on the facts and circumstances of the case and the material on record. Therefore, merely for the reason that a different conclusion is also (sic) interfere with the findings of fact recorded by the lower appellate Court. 9. In view of the above, the impugned order does not call for any interference by this Court. 10. As a result, this revision petition fails and is accordingly dismissed. 11. The parties, through their learned Counsel, are directed to appear before the lower appellate court on May 9, 2000. 12. Records of the Courts below be returned to the lower appellate Court forthwith.