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2000 DIGILAW 979 (PNJ)

Kehru v. Mohinder Singh

2000-08-24

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a civil revision and has been directed against the order dated 22.3.1999 passed by Additional District Judge, Kapurthala, who dismissed the application of the petitioner under Section 5 of the Limitation Act and also dismissed his appeal holding that it is time barred. 2. Some facts can be noticed in the following manner :- The suit was filed by Kehru-petitioner against his sons and daughters-in-law, which was dismissed by the trial Court vide judgment and decree dated 13.11.1995. An application for obtaining the certified copies of the judgment and decree was moved by the petitioner and the copies were ready for delivery on 20.11.1995 as stands revealed from the copy of order dated 22.3.1999, which is impugned order in the present revision. In these circumstances, the appeal could be instituted on or before 20.12.1995, but it has been filed on 22.6.1996. Along with the appeal, the plaintiff-petitioner filed an application under Section 5 of the Limitation Act and it was pleaded by him that he fell seriously ill due to the injuries inflicted on him by the respondents a few days prior to the delivery of the judgment and decree under appeal and he remained in precarious condition up till 19.6.1996 and during this period he remained bad-ridden and was not in a position to make free movement even with the help of crutches. Since he was completely disabled and was unable to engage his counsel, therefore, the appeal could not be instituted within limitation. The applicant could contact his lawyer on 20.6.1996 and on his advice he filed the appeal on 22.6.1996. Notice of the application was given to the respondents, who denied the allegations and from the pleadings of the parties, the Appellate Court framed the following issues on the application under Section 5 of the Limitation Act :- i) Whether there are sufficient grounds to condone the delay ? OPA ii) Relief. 3. The parties led oral as well as documentary evidence in support of their respective cases and on the conclusion of proceedings, issue No. 1 was decided against the petitioner-applicant. Resultantly, his application under Section 5 was dismissed and so is the appeal. OPA ii) Relief. 3. The parties led oral as well as documentary evidence in support of their respective cases and on the conclusion of proceedings, issue No. 1 was decided against the petitioner-applicant. Resultantly, his application under Section 5 was dismissed and so is the appeal. The reasons of dismissal of the application are contained in paras No. 7 to 13 of the impugned order and it will be proper for me to quote these reasons in verbatim as under : "7. Kehru AW1 deposed that after the delivery of judgment and decree by the court of first instance, his son broke his legs and for a period of 5-6 months, he became immobile and as such, he could not file appeal in the court as also he could not contact his lawyer. 8. On the other hand, Mohinder Singh-respondent No. 1 as RW1 deposed that his father i.e. applicant-appellant and his counsel were present in the court on 13.11.95 when the judgment and decree under appeal were rendered and that his father never remained bad-ridden from 13.11.95 till 22.6.96 and that he never inflicted any injury to his father i.e. appellant- applicant after the decision of the case. He further testified that the suit was got filed by interested persons and now again the applicant-appellant has fell into the hands of those persons, who got appeal filed from him. 9. The learned counsel for the applicant-appellant, contended that since the latter remained bed-ridden due to injuries caused to his legs by the respondents for a period of 5-6 months, this itself is sufficient ground for condoning the delay. But, on the other hand, learned counsel for the contesting respondents rightly contended that since the oral evidence of AW1 has not been corroborated by any other oral evidence or documentary evidence to prove his admission in the hospital for treatment of fracture of the legs, the sole oral evidence of AW1 should not be accepted to be veritable for purpose of arriving at the conclusion that there is a sufficient ground to condone the delay in filing the appeal. 10. Applicant-appellant is an interested witness. 10. Applicant-appellant is an interested witness. He being an interested witness, could not be expected to testify repugnant to his pleas taken in the application and as such, his evidence for want of corroboration by other oral and documentary evidence, must be discarded and it must be held that there is no evidence to indicate that he was caused injuries by his sons, who are respondents No. 1 to 3 in this case or that he remained admitted in hospital for treatment of fracture. 11. Applicant as AW1 deposed that his legs were fractured by his sons, seven days prior to the delivery of judgment and decree by the trial court and that he got medical treatment from a private hospital of Doctor Thind. Strange enough, Doctor Thind, who treated the fracture of the applicant, has not been examined, in this case. Similarly, if the injuries to the applicant were given by the respondents, in that event, it was required of the applicant to file criminal complaint against them or he should have got a criminal case registered against them with the police. There is no evidence on the record that the police did not register case against the sons of the applicant for causing injuries to him despite being approached by him. 12. There is also no allegation in the application that the police did not register the case against the respondents at the instance of the applicant or that he had to file a criminal complaint against them for causing injuries to the applicant. This evidence is missing and in this view of the matter, the evidence of RW1 inspires confidence, who rightly stated that no injuries were caused to the applicant by the respondents or that the applicant remained bed-ridden from 13.11.95 up till 22.6.96. It, thus, follows that there is no evidence on the record to indicate that the applicant remained bed- ridden from 19.11.95 to 19.6.96. When that is so, the applicant could get easily the copy of the judgment and decree on 20.11.95 or instantly thereafter, as the copies of the judgment and decree were ready for delivery on 20.11.95 as can be manifested from the stamp affixed on the copy of the decree sheet by the copying agency. 13. When that is so, the applicant could get easily the copy of the judgment and decree on 20.11.95 or instantly thereafter, as the copies of the judgment and decree were ready for delivery on 20.11.95 as can be manifested from the stamp affixed on the copy of the decree sheet by the copying agency. 13. The applicant was negligent in not getting the copies of the judgment and decree under appeal instantly after 20.11.95, and that being so, no sufficient cause exists to condone the long delay in filing the appeal. Issue is, thus, held against the applicant-appellant and in favour of the respondents. 4. I have heard Mr. Parminder Singh, Advocate, on behalf of the petitioner, Mr. Naresh Prabhakar, Advocate, on behalf of the respondents and with their assistance have gone through the record of the case. 5. The learned counsel appearing on behalf of the petitioner submitted that petitioner-Kehru is the father of respondents No. 1 to 3 and father-in-law of respondents No. 4 to 6. The judgment in the trial Court was pronounced on 13.11.1995. The petitioner suffered injuries at the hands of his loyal sons. He remained bad-ridden for 5/6 months and could contact his lawyer on 20.6.1996. Thereafter, without wasting any time he filed the appeal. The learned counsel further submitted that the petitioner was always interested for the adjudication of his rights and his filing of the appeal itself suggests that there was no mala fide on his part. As against this, the learned counsel appearing on behalf of the respondents has supported the order by stating that the evidence led by petitioner-Kehru is contradictory. There is no medical evidence on the record to show that the petitioner got his injuries medically treated and that he ever lodged any report against the respondents and he has coined out an excuse that respondents were responsible in the said delay. 6. I have considered the submissions raised by the learned counsel for the parties and am of the opinion that the present matter has not been examined in right perspective by the learned Additional District Judge. During the course of submissions the learned counsel for the petitioner showed me x-rays and according to the learned counsel these x-rays pertain to the petitioner. During the course of submissions the learned counsel for the petitioner showed me x-rays and according to the learned counsel these x-rays pertain to the petitioner. But I do not want to give much importance to these x-rays because the petitioner has not examined any doctor before the first Appellate Court in support of his application under Section 5 of the Limitation Act. The fact is that the petitioner did file an appeal before the first Appellate Court on 22.6.1996. What is a sufficient cause in a particular matter has to be seen with respect to facts and circumstances of each case. The Honble Supreme Court has interpreted Section 5 in a very liberal manner and has held in N. Balakrishan v. M. Krishnamurthy, 1999(1) P.L.R. 462 as follows :- "Held, that it must remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guide-line that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss." 7. If the petitioner-applicant was negligent and if he was not interested in filing the appeal, he would not have filed the appeal on 22.6.1996. His filing of the appeal itself suggests that he was always eager to get his rights adjudicated. So much so, after the pronouncement of the judgment, he applied for the copies of the judgment and decree, meaning thereby that he was interested to file an appeal against the judgment and decree passed by the trial Court. Nobody in the modern times wants to lose his valuable rights without taking the litigation to the logical ends. So much so, after the pronouncement of the judgment, he applied for the copies of the judgment and decree, meaning thereby that he was interested to file an appeal against the judgment and decree passed by the trial Court. Nobody in the modern times wants to lose his valuable rights without taking the litigation to the logical ends. There might be some laches on the part of the petitioner but it cannot be said that mala fides were discernible from his conduct. 8. In this view of the matter, I allow this revision, set aside the impugned order dated 22.3.1999 and allow the application under Section 5 of the Limitation Act. Directions are given to the Additional District Judge, Kapurthala to re-admit the appeal to its original number and dispose of the same within six months after giving notice to both the parties. Parties are directed to appear before the first Appellate Court on 6.9.2000. Revision allowed.