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2006 DIGILAW 3097 (PNJ)

Sukhdev v. Kirpal Singh

2006-08-02

VINOD K.SHARMA

body2006
Judgment 1. The present revision petition has been filed against the order dated 25.7.2005 passed by the learned Civil Judge (Sr. Divn.), Ferozepur, rejecting the application filed under Sec.5 of the Limitation Act for condoning the delay and also the application filed under Order 37 of the CPC for leave to defend the case. 2. The case set up by the petitioner was that he had put in appearance in the case on 11.3.2005 when summons with judgment were served upon him. It was averred by the petitioner that he could not engage a counsel at that time as he was not having sufficient funds with him. It was further the case of the petitioner that he fell down in a well in his fields, as a result of which, he suffered leg injury and he remained under the treatment of doctor. Therefore, he claimed that he was not in a position to walk. It was also the case of the petitioner that he came present to the Court and filed an application for leave to defend along with an application under Sec.5 of the Limitation Act. It was the case of the petitioner that the alleged pronote and receipt were false and fabricated documents. He also pleaded that he had taken no loan from the plaintiff. Therefore, he sought leave to defend the suit. 3. The application was contested by the respondent-plaintiff on the plea that leave to defend was to be filed with 10 days of service of summons with judgment which was effected upon him on 11.3.2005. The present application having been moved on 2.5.2005 was hopelessly barred by time. It was further the case of the plaintiff-respondent that this was intentionally done by the defendant-petitioner. 4. On merit, it was pleaded by the respondent that the medical certificate produced by the petitioner did not show any bone injury and it was only a tissue swelling around the ankle, and he could have easily come present to move an application. The allegation that the pronote and receipt were forged and fabricated documents was also denied. 5. The learned trial Court on the basis of the pleadings and arguments came to the conclusion that petitioner had to put in appearance on 11.3.2005 and when the summons with the judgment were served and the present application was moved after 51 days. The allegation that the pronote and receipt were forged and fabricated documents was also denied. 5. The learned trial Court on the basis of the pleadings and arguments came to the conclusion that petitioner had to put in appearance on 11.3.2005 and when the summons with the judgment were served and the present application was moved after 51 days. The learned trial Court further came to the conclusion that the petitioner had not been able to prove that he could not have sufficient funds when he appeared in Court on 11.3.2005. The trial Court by holding that sufficient cause was not shown by the petitioner dismissed the application. 6. Learned Counsel for the petitioner contended that the Court had the power under Rule 3 (7) of Order 37 of the Code of Civil Procedure to condone the delay in filing the application for leave to defend. The learned Counsel further contended that the amendments made by the States of Punjab and Haryana in the provisions of Sec.5 of the Limitation Act, 1908, have been made applicable to sub-rule (1) of Order 37 of the CPC. Therefore, the petitioners application for condonation of delay was required to be considered in terms of law laid down qua condoning the delay. 7. Learned Counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in State of Nagaland V/s. Lipok A. O. and Ors.2005 (2) R. C. R. (Crl.) 414 : 2005 (2) Apex Criminal 74 (S. C.) to contend that the Courts should be liberal in condoning the delay. The Honble Supreme Court in the above mentioned case came to the conclusion that expression "every days delay must be explained does not mean that a pedantic approach should be made" and for the said observations, the Apex Court relied upon the judgment of the Supreme Court reported in Concord of India Insurance Co. Ltd. V/s. Nirmla Devi. 8. The learned Counsel for the petitioner further submitted that unless want of bona fides for such an inaction or negligence is proved, the persons would not be deprived of the benefit of Sec.5 of the Limitation Act. The Honble Supreme Court was pleased to lay down that the application should not be thrown out, or any delay cannot be refused to be condoned unless findings of want of bona fides or negligence are recorded. 9. The Honble Supreme Court was pleased to lay down that the application should not be thrown out, or any delay cannot be refused to be condoned unless findings of want of bona fides or negligence are recorded. 9. In the case in hand the learned trial Court has merely rejected the application on the ground that there is nothing on record to show that the petitioner was not able to walk. The Court nowhere doubted the allegation of the petitioner that he had fallen in a well and was under treatment. In that situation, it could not be said that the application moved by the petitioner lacked bona fide or that he was negligent in approaching the Court. 10. The learned trial Court also did not take note of the fact that the medical certificate produced on record had noted that the petitioner had fallen down in a well in his fields and sustained injuries in the region of right ankle. 11. However, the learned Counsel for the respondent sought to rely on the judgment of the Delhi High Court reported in Escorts Finance Ltd. V/s. Nielcon Ltd.2000 (4) R. C. R (Civil) 261 : 12001 (1) Civil Court Cases 563 to contend that if the delay is caused without due care and attention, the same cannot be excused on the ground of sufficient cause. In the said case, on facts, the Honble High Court of Delhi was pleased to hold that the application lacked bona fides and was dismissed. However, in the present case, no such findings have been recorded, rather the evidence on record clearly proves that the stand taken by the petitioner was bona fide and he in fact remained under the treatment of a Doctor. Therefore, he had sufficient cause to move an application for condonation of delay. 12. In view of what has been stated above, this revision petition is accepted, the impugned order is set aside and the trial Court is directed to consider the application filed by the petitioner for leave to defend in accordance with law after condoning the delay. The parties, through their Counsel are directed to appear before the Trial Court on 30th of October,2006. .