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2002 DIGILAW 359 (HP)

Tajinder Kumar Sahni v. Mast Ram Shankta

2002-12-30

M.R.VERMA

body2002
JUDGMENT : M.R. Verma, J. This revision petition under section 115 of the Code of Civil Procedure (hereafter referred to as the code) has been preferred by the plaintiff/petitioner (hereafter referred to as the petitioner) against the order dated 6.10.2000 passed by the learned District Judge, Shimla whereby the application of the petitioner under section 5 of the limitation Act for condonation of delay in filing the appeal has been dismissed. 2. Brief facts leading to the presentation of this petition are that the petitioner had instituted a suit for permanent prohibitory injunction and possession of certain immovable properties against the defendants/respondents (hereafter referred to as 'the respondents' in the court of the learned Sub Judge (3), Shimla. The suit was dismissed by the said court vide its judgment and decree dated 6.11.1997. The petitioner filed an appeal against the aforesaid judgment and decree in the court of the learned District Judge, Shimla on 18.2.1998 by which time the appeal apparently had become time barred, therefore, alongwith the memorandum of appeal the petitioner moved an application under section 5 of the limitation Act for condonation of delay in filing the appeal on the grounds that he had gone out of Shimla due to his personal work and he was informed of the decision in the suit by his counsel as soon as the judgment was rendered and that he (counsel) had applied for certified copies of judgment and decree. However, the counsel never supplied those copies to the petitioner who had to apply for the certified copies of the judgment and decree afresh on 30.11.1997 through one of his friends. The petitioner's friend informed him of the receipt of the copies on 15.1.1998 by which time the limitation for filing the appeal was already over. The petitioner contacted a lawyer for filing the appeal who informed that the courts wee going to close on 17.1.1998 for winter vacation, therefore, the appeal could be filed only after the re-opening of the courts. The courts re-opened on 18.2.1998 and the appeal was filed on that very day. 3. The petitioner contacted a lawyer for filing the appeal who informed that the courts wee going to close on 17.1.1998 for winter vacation, therefore, the appeal could be filed only after the re-opening of the courts. The courts re-opened on 18.2.1998 and the appeal was filed on that very day. 3. The respondents contested the application for condonation of delay on the grounds that no ground much less a sufficient ground for condonation of delay is made out inasmuch as the certified copies were admittedly received by the petitioner on 15.1.1998, therefore, he could file the appeal before the closure of the courts for winter vacation. 4. On the respective averments of the parties, the learned District Judge framed the following issues : (1) Are there sufficient grounds to condone the delay in filing the appeal? OPA. (2) Relief. 5. On considering the evidence on record, the learned District Judge held issue No. 1 against the petitioner and accordingly dismissed the application. Hence, this petition. 6. I have heard the learned counsel for the petitioner and respondent No. 1 and have also gone through the records. However, none appeared to argue the case for respondent No. 2. 7. It is evident from the stamp affixed on the certified copies of the judgment and decree sheet that application for supply of these copies was made on 30.11.1997. The copy was attested and delivered on 6.1.1998. The version of the petitioner is that he was informed of the decision in the suit by his counsel who had also applied for certified copies o the judgment and decree which were never received and that he had to apply for such copies through his friend P.R. Gupta. He has further stated that such copies wee received by his friend on 7th or 8m January, 1998 were sent to him by post which were received by him on 8th or 9th January, 1998. On 15th January, 1998 he sent back those copies as the Courts remain closed upto 17.2.1998, therefore, he filed appeal on 18.2.1998 without any deliberate delay on his part In the cross examination he has further stated that after receipt of the information about the fact of the suit he tried to contact his counsel telephonically two or three times but failed to contact him. P.R. Gupta (AW-2) has corroborated the version of the petition about the petitioner asking him to apply for copies which he did on 30.11.1997 and that such copies were received by him on 6.1.1998. He has further corroborated his statement about the copies dispatched to the petitioner and that he was asked by the petitioner to contact a lawyer for filing the appeal which he did and he was advised by the lawyer that the petitioner should come to Shimla within a day or two to file the appeal. However, the petitioner did not turn up within the said period. 8. In rebuttal respondents examined Mast Ram (RW-1) who has stated that petitioner used to attend the hearing and was present on the day when the judgment was delivered. In the cross-examination he has denied the suggestion that the petitioner was not present in the court when the judgment was delivered. 9. The statement of witnesses of the petitioner on almost all material particulars remains unrebutted. What emerges from this unrebutted evidence is that the certified copies of the judgment and decree were received by the petitioner on 8th or 9th January, 1998 which he returned to his friend to seek advice about the filing of the appeal on 15.1.1998. He had contacted this friend even telephonically to engage a counsel for him on 13th, 14th and 15th January, 1998. It can be taken judicial note of that Courts in Shimla closed for winter vacation on 17th of January, 1998 and re-opened on 18th February, 1998 when the appeal was filed. In these circumstances, it cannot be said that the delay in filing the appeal by the petitioner was intentional, deliberate or malafide. The learned District Judge had refused to condone the delay on the round that the petitioner had not offered any explanation for not filing the appeal by 12th January, 1998 where as he had received the copies on 8th or 9th January, 1998. However, there is unrebutted evidence that after receipt of the copies the petitioner had been contacting and requesting his friend lo engage a counsel for him at Shimla whereas he himself was at Delhi. However, there is unrebutted evidence that after receipt of the copies the petitioner had been contacting and requesting his friend lo engage a counsel for him at Shimla whereas he himself was at Delhi. About the earlier period after the decision of the suit, the delay in not getting the copies stood duly explained because the copies were applied for by the counsel representing the petitioner but he never received such copies and had to apply for the copies afresh through his friend. In the facts and circumstances of the case, by causing delay the petitioner was not going to gain in any manner and after having received the information about the disposal of the suit front his counsel he had been off and on contacting the counsel and his friend to get the copies and to file the appeal which could evidently not be filed on or after 17th of January, 1998 till 17th February, 1998 and was filed on the re-opening of the Court after winter vacation on 1891 February, 1998. 10. It may be pointed out that expression "sufficient cause" for the purpose of condonation of delay has to be construed liberally and in an enabling manner so that substantial justice is rendered to the parties. In view of this settled position in law and the facts and circumstances as brought on record, the petitioner had shown sufficient cause for condonation of delay and the delay deserved to be condoned. 11. As a result, this petition is allowed and the delay in filing the appeal by the petitioner is condoned and this application is accordingly allowed and the appellate court below is directed to proceed in the matter in accordance with law. 12. Parties through their learned counsel are directed to appear before the court below on 13.1.2003.