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2002 DIGILAW 326 (HP)

HARJINDER KAUR v. SUNITA

2002-12-04

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—The applicants have filed this application under Sections 5 and 14 of the Limitation Act (hereafter referred to as the Act) for condonation of delay in filing a revision petition against the order dated 8.5.1995, passed by the learned Sub Judge 1st Class, Sunder Nagar, whereby he held their suit as abated and consigned it to the records. 2. Brief and undisputed facts leading to the presentation of this application are that the applicants and one Gurdit Singh (since deceased) instituted a suit against the non-applicants 3 and 4 and the predecessors-m-interest of the respondents, who died and is represented by the non-applicants, for permanent prohibitory injunction restraining the non-applicants from digging holes and raising new plants etc. on and changing the nature of the land comprising khasra Nos. 1, 2 and 7 to 10, measuring 62-14-9 bighas, situate in Mohal Kharti, Teh. Sunder Nagar. During the pendency of the suit, one of the plaintiffs, namely, Gurdit Singh died. However, an application to bring on record his legal representatives was not filed in time. An application under Order 22 rule 3 read with Section 151 of the Code of Civil Procedure was filed intimating that said Gurdit Singh had died and his legal representatives were already on record and none was required to be brought on record as his legal representative. Therefore, a prayer was made to delete his name from the array of the plaintiffs. The application was resisted by the non-applicants on the grounds that the deceased was survived by his wife and it was wrong that his legal representatives were already on record and they represented the estate of the deceased. It was claimed that the right to sue did not survive to the surviving plaintiffs and the suit stood abated. The learned trial Judge, vide his order dated 8.5.1995 held that the wife of the deceased is alive and since she has not been impleaded as legal representative of the deceased, the suit stood abated and accordingly, ordered it to be consigned to the records. 3. Feeling aggrieved by the said order of the learned Trial Judge, the applicants preferred an appeal which was allowed by the learned Additional District Judge, Mandi vide judgment dated 1.4.1999 which judgment was assailed by the non-applicants in Civil Revision No. 180 of 1999 in this Court. 3. Feeling aggrieved by the said order of the learned Trial Judge, the applicants preferred an appeal which was allowed by the learned Additional District Judge, Mandi vide judgment dated 1.4.1999 which judgment was assailed by the non-applicants in Civil Revision No. 180 of 1999 in this Court. The revision petition was allowed vide judgment dated 24.9.2001 and it was held that the appeal under Order 43 of the Code of Civil Procedure (hereafter referred to as the Code), preferred by the applicants before the learned Additional District Judge was not competent and the learned Additional District Judge, by entertaining and allowing such appeal, had exercised the jurisdiction not vested in him. Therefore, the judgment passed by him was set aside. It is against this admitted background that the applicants want to prefer a revision petition against the order dated 8.5.1995 passed by the learned trial Judge whereby the suit has been held as abated and has been consigned to the records. The revision petition admittedly has been filed after expiry of 6 years, 6 months and 19 days from the date of order sought to be challenged. Hence this application. 4. In the application, the admitted factual aspects of the pendency of the case in different Courts at different stages, as already stated hereinabove, have been averred. It has further been averred that the applicants wanted to file an appeal against the judgment dated 24.9.2001 passed by this Court in the apex Court. However, legal advice given to them by Mr. Harminder Lal, Advocate, practicing in the Honble Supreme Court, was that instead of filing the appeal, the applicants should file revision petition against the order dated 8.5.1995 passed by the learned Sub Judge. Such an advise is stated to have been given to the applicants on 24.12.2001 and thereafter the revision petition has been filed on 31.12.2001. It is further claimed that there is no negligence, inaction or want of boner fide on the part of the applicants in filing the revision petition and they could not have gained, in any manner, by resorting to the remedies they had adopted and, thus, there is sufficient cause for condonation of delay in filing the revision petition. The averments as made in the application are duly supported by the affidavit of Rishi Singh, General Power of Attorney of the applicants. 5. The non applicants contested the application. The averments as made in the application are duly supported by the affidavit of Rishi Singh, General Power of Attorney of the applicants. 5. The non applicants contested the application. In their written reply, they took the preliminary objections that the application is not maintainable as it is not bona fide and also does not disclose sufficient cause for condonation of delay, particularly in view of the fact that during the pendency of the appeal before the learned Additional District Judge, on objection about the maintainability of the appeal was taken but the applicants persisted in continuing their appeal. On merits, it has been reiterated that despite objection about the maintainability of the appeal before the learned Additional District Judge, the applicants persisted to pursue the appeal and they cannot now be permitted to take the benefit of their own wrong and there is no sufficient cause for condonation of delay. 6. I have heard the learned Counsel for the parties and have also gone through the material placed on record. 7. It was contended by the learned Counsel for the applicants that after passing of the order, sought to be impugned by the revision petition, the applicants had been with due diligence and in good faith pursuing civil proceedings against such order and had not been negligent in prosecution of such proceedings at any stage, therefore, there is sufficient cause to condone the delay in filing the revision petition. 8. On the other hand, the learned Counsel for the non-applicants contended that the applicants persisted in pursuing wrong remedy despite objection by the respondents, therefore, they cannot be permitted to take benefit of their own wrongs and no sufficient cause is made out to condone the delay in filing the revision petition against an order passed years before. To substantitate his contention, the learned Counsel relied on Jagannath Prasad v. Sant Hardasram Sevashram and others, AIR 1978 Allahabad 250. 9. It may be pointed out at the very outset that the provisions of Section 14 of the Act are applicable to the suits and applications only. To substantitate his contention, the learned Counsel relied on Jagannath Prasad v. Sant Hardasram Sevashram and others, AIR 1978 Allahabad 250. 9. It may be pointed out at the very outset that the provisions of Section 14 of the Act are applicable to the suits and applications only. However, the principles therein can be applied even to an appeal and a revision, if in the given circumstances of a case, the prosecution of civil proceeding other than the one available was with due diligence, bona fide and in good faith and constitute "sufficient cause" for condonation of delay for the purpose of Section 5 of the Act. 10. In Jagannath Prasad v. Sant Hardasram Sevashram and others, AIR 1978 Allahabad 250, the Allahabad High Court held as under:— "5. In short, the rule appears to be that where any mistake with regard to the forum of presenting an appeal has been committed and the court is satisfied on the facts of the case that this was either due to some forgetfulness or oversight or uncertainly as to the law regarding the forum for presenting the appeal, then "it may be fit case for applying the provisions of Section 14 of the Limitation Act. On the contrary, where the law is plain and does not admit of any doubt and the appellant or his agent could not possibly have any illusion as to the appropriate forum for presenting appeal, it would be a case of palpable negligence and would not be covered by the provisions of Section 14 of the Limitation Act......." 11. Be it stated that in the aforesaid case objection was raised about the maintainability of an appeal. The Allahabad High Court noticing that the valuation of the appeal as fixed by the appellant in itself indicated that the appeal was beyond the jurisdiction of the Court to which it was presented and despite objection and keeping in view the valuation, the appellant did not care to take proper recourse and thus was found grossly negligent in pursuing the appeal. It was against this background that the benefit of Section 14 of the Act was declined. 12. In the case in hand, maintainability of the appeal before the lower appellate Court was, no doubt, objected to by the non-applicants but such an objection was not only overruled by such Court but the appeal was allowed. It was against this background that the benefit of Section 14 of the Act was declined. 12. In the case in hand, maintainability of the appeal before the lower appellate Court was, no doubt, objected to by the non-applicants but such an objection was not only overruled by such Court but the appeal was allowed. In fact, the question as to whether an appeal under Order 43 of the Code or a revision was maintainable against the order of the trial Court, was vexed question of law on which different opinions of the High Courts are available. Otherwise, the ratio in the case does not shut out taking into account the principles as enunciated under Section 14 of the Act for the purpose of determination of sufficient cause under Section 5 of the Act. 13. In Subedar Baman Ram v. Mt. Masti and another, AIR 1960 HP 14, while dealing with a similar question, it was held as under:— "(6) In Civil Misc. Petition No. 6 of 1959, seeking the benefit of the provisions of Section 14 of the Limitation Act, it has been stated that the appeal was taken to the Court of the District Judge, because the suit had been dismissed and the only order which was passed to the detriment of the appellant was a direction to the effect that court-fees amounting to Rs. 946.87 P. be recovered from him. It was this liability which the appellant desired to get rid of. It was submitted that although the appeal was taken to the District Judge under a mistaken notion, nevertheless, counsel had not been palpably negligent. This Court takes note of the fact that this is the first appeal of its kind that has come before it in recent, years. Although Section 14 does not in terms apply to an appeal, nevertheless, its principles would apply by analogy to appeals also, i.e. the circumstances contemplated in Section 14 might, and ordinarily would, constitute a sufficient cause within the meaning of Section 5 (see AIR 1937 PC 276). Having regard, therefore, to the ratio decidendi, cited earlier, I would hold that the time spent in prosecuting the appeal before the District Judge should be excluded under Section 5, i.e. on the analogy of Section 14 of the Limitation Act. If that is done, the appeal would be within time. Civil Misc. Having regard, therefore, to the ratio decidendi, cited earlier, I would hold that the time spent in prosecuting the appeal before the District Judge should be excluded under Section 5, i.e. on the analogy of Section 14 of the Limitation Act. If that is done, the appeal would be within time. Civil Misc. Petition No. 6 of 1959 is accordingly allowed and the appeal held to be within time." 14. The suit of the applicants was held as abated and was ordered to be consigned to the records vide order dated 8.5.1995 passed by the learned trial Judge. The applicants preferred an appeal against the said order. No doubt, the non-applicants took an objection regarding the maintainability of the appeal before the Appellate Court but such an objection was overruled and the appeal was allowed vide judgment dated 1.4.1999. This judgment was assailed by the non-applicants by way of Civil Revision No. 180 of 1999 which was allowed by this Court vide judgment dated 24.9.2001 on the premises that an appeal under Order 43 of the Code against the said order of the trial Court was not maintainable. The question regarding maintainability of the appeal decided in favour of the applicants by the appellate Court but was decided in favour of the non-applicants by this court was a vexed question of law, therefore, filing of appeal by the non-applicants apparently was a bonafide act done in good faith. It cannot, therefore, be said in the facts and circumstances of the case that the applicants had been prosecuting a vexatious proceedings with some ulterior motive or were grossly negligent in pursuing their case or have deliberately delayed the filing of the revision petition till 24.9.2001 when the revision petition of the non-applicants was allowed by this Court. 15. The applicants have 90 days time to prefer SLP against the judgment of this Court. It is case of the applicants that they intended to prefer SLP but were advised by Mr. Himender Lal, Advocate, Supreme Court on 24.12.2001 to file revision against the order of the trial Court. These averments as made in the application are duly supported by the affidavit of Rishi Singh, General Attorney of the applicants and there is no specific denial of these averments in the reply. After having been so advised, the applicants have filed the revision petition in this Court on 31.12.2001. 16. These averments as made in the application are duly supported by the affidavit of Rishi Singh, General Attorney of the applicants and there is no specific denial of these averments in the reply. After having been so advised, the applicants have filed the revision petition in this Court on 31.12.2001. 16. The aforesaid facts and circumstances of the case clearly establish that the delay in filing the revision petition is not due to negligence, inaction or want of bona fide and there is sufficient cause to condone the delay in filing the revision petition. 17. As a result, this application is allowed and the delay in filing the revision petition is condoned. No orders as to costs. Application allowed.