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2008 DIGILAW 116 (PNJ)

Bhagwana v. Tara Chand

2008-01-18

PERMOD KOHLI

body2008
JUDGMENT PERMOD KOHLI, J. - Through the medium of this application, delay of 688 days in re-filing the appeal, is sought to be condoned. 2. The grounds for condonation of delay are indicated in paragraphs 2 and 3 of the application, which are reproduced hereunder:- “2. That the appeal was filed on 26.11.2005 and the same was returned by the Registry lastly on 24.12.2007 with some objections. 3. That the said appeal could not be refiled within the time because the brief was misplaced by the clerk of the counsel during the shifting of the office of counsel for the appellant from House No.1327 Sector 4, Panchkula to House No.1667 Sector 4, Panchkula and during this shifting this brief was inadvertently put among the admitted cases by the clerk and skip from the mind of the counsel and his clerk. And now when the client asked about the status then it was searched and the same was found in the store room in admitted cases.” 3. In view of the allegations made in paragraph 2 of the application, I called report from the Registry. From the Report, it appears that the appeal was presented on 26.11.2005. The Registry raised the following objections:- “1. Opening sheet not filed. 2. Substantial question of law be mentioned in grounds of appeal. 3. Page marking not done. 4. Trial Court judgment be filed before appellate Court judgment. 5. How this case is within limitation? 6. Fair typed copies of judgment and decree be filed.” 4. Thereafter the file was handed over to the appellant on 24.12.2005. The appeal remained pending with the counsel for the appellant and it was refiled on 20.12.2007 as is evident from the original record produced before me. This also bears the endorsement by the learned counsel wherein he has mentioned that “needful has been done and refiled. Sd/-Advocate., 20.12.2007.” There is stamp by the Dealing Assistant also showing that the appeal was refiled on 20.12.2007 at 11.45 A.M. under endorsement No.154727. 5. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court Volume-5 (hereinafter referred to as “the Rules”), deals with the limitation for filing the appeal which reads as under:- “5. 5. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court Volume-5 (hereinafter referred to as “the Rules”), deals with the limitation for filing the appeal which reads as under:- “5. Amendment-(1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, a 40 days in the aggregate, to be fixed by him any amendment of appeal for the reasons specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under sub-rule (1) it shall be listed for orders before the Court.” 6. In view of the aforesaid rule, the returned appeal after removal/rectification of the objections, is required to be re-filed within 10 days. However, the period can be again extended after the expiry of 10 days for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate. 7. In the present case, after the receipt of the appeal from the Registry on 24.12.2005 it was neither refiled in the Registry within 10 days nor any extension in time was sought from the Deputy Registrar concerned in terms of rule 5 (1) and the appeal has been refiled only on 20.12.2007 i.e. after 688 days. The applicant in paragraph 2 of the application has misrepresented the facts by saying that the appeal was originally filed on 26.11.2005 and the same was returned by the Registry lastly on 24.12.2007 with some objections. This statement is totally false and contrary to the record. On presentation of the appeal on 26.11.2005, it was returned to the learned counsel for the applicant-appellant on 24.12.2005 and not on 24.12.2007, as has been mis-stated in paragraph 2 of the application. This mis-statement itself, is sufficient to refuse judicial discretion in favour of the applicant-appellant. Even otherwise, the only ground for condonation of delay is contained in paragraph 3 of the application wherein it is stated that the brief was misplaced by the Clerk of the counsel during the shifting of the office of the counsel from House No.1327, Sector 4, Panchkula to House No.1667, Sector 4, Panchkula and was put among the admitted cases by the Clerk and skip from the mind of the counsel and his Clerk. It is further mentioned that when his client asked for the status of the case, it was searched and the file has been found in the store-room in the admitted cases. The application is supported by an affidavit of one Ramesh Kumar C/o Shri Jitender Nara, Advocate. The identity and status of Ramesh Kumar is not disclosed in the affidavit nor his concern with the case, is mentioned. Such an affidavit has no consequence and cannot be taken into consideration. Even otherwise, no details are given as to when the office of the counsel was shifted and the file was misplaced and when the file was retrieved from the store-room of the admitted cases. 8. Learned counsel appearing for the applicant-appellant has stated that it was due to the fault of the Clerk that delay has been caused. 9. I am not impressed by this argument. It is the duty of the party also to follow his/her case. It cannot be believed that the applicant-appellant has not bothered to enquire about his case for a period of more than two years. If he has not taken any interest, it is sheer negligence on the part of the applicant-appellant. In the absence of there being any details about the shifting of the office of the counsel and the time when it came to the notice of the party/counsel, the grounds urged in paragraph 3 of the C.M.Applicaton cannot be taken on its face value. 10. Learned counsel appearing for the appellant has further stated that Rule 5 of the Rules should not be construed strictly and once an appeal is filed within limitation its delay in refiling is immaterial. With a view to prove his point, learned counsel has referred to Babu Singh Vs. M.C. Ropar, 2002 (2) RCR (Civil), 84. In this case, the appeal was presented on 24.10.1997 without the copy of the decree sheet with the Registry and it was within time. Certain objections were raised and after compliance of the objections, the memorandum of appeal was re-filed on 26.11.1997. Again some objections were raised and after complying the said objections, the appeal was again presented on 02.12.1997. Again on 12.03.1998, another objection was raised by the Registry regarding limitation and on the basis of the note of the office that appeal is barred by time, file was placed before the Court. Again some objections were raised and after complying the said objections, the appeal was again presented on 02.12.1997. Again on 12.03.1998, another objection was raised by the Registry regarding limitation and on the basis of the note of the office that appeal is barred by time, file was placed before the Court. It was under these circumstances, this Court found that the appeal was not beyond time as it was filed within period of limitation and the objections raised by the Registry were not valid. Accordingly, the Court observed as under:- “........................ In fact the office took the objection that the appeal was barred by time by the time it was represented. There may be delay in representation of the appeal, but once the appeal was filed and when no decree has been prepared, the subsequent delay in representation of appeal after it is returned for complying with certain objections cannot be taken into for computation of the period of delay. If the appeal is filed after complying with all the mandatory requirements, then it is to be taken that the appeal is filed on the date of the original presentation/filing.” 11. Reliance is also placed upon Karnail Singh Vs. Piara Singh and others, 2002 (2) P.L.J., 261. In this case a similar plea was taken by the applicant regarding the missing of the brief in the office of the Advocate and the explanation tendered by Advocate was accepted by the Court. Delay of 698 days in re-filing the appeal was accordingly condoned and the Court made the following observations:- “.............As referred to above, the appeal was filed within limitation. The appeal was returned by the office with the certain objections. There was delay in re-filing the appeal. In the application under Section 151 CPC, seeking condonation of delay, in re-filing the appeal, the point taken is that the previous Clerk namely Jai Parkash, had left the job, without informing the counsel and that he had mixed this appeal in the decided cases and that the present Clerk, namely, Naresh Kumar, with great efforts, traced this case and was being re-filed and in the process, there was delay in re-filing the appeal. It had been alleged that the delay in re-filing the appeal, was not intentional, but was due to the aforesaid reasons. In my opinion, there is no reason to disbelieve the averments made in this application. It had been alleged that the delay in re-filing the appeal, was not intentional, but was due to the aforesaid reasons. In my opinion, there is no reason to disbelieve the averments made in this application. I am further of the opinion that the cause shown is sufficient. Accordingly, the application under Section 151 CPC seeking condonation of delay of 698 days in re-filing the appeal, is allowed and the delay is condoned.” 12. On the basis of the aforesaid judgment, it is stated that the application should be allowed. 13. For condonation of delay, two questions are required to be seen (i) Whether there is sufficient cause and it depends from case to case whether in given circumstances, sufficient cause has been established or not? (ii) Whether the law of limitation has to be enforced or the question of limitation should be taken only as a mere formality. 14. In Babu Singh's case (supra), the question of limitation was raised by the office taking into consideration the limitation from the date of the judgment and without taking notice of the return of the file. This Court made observations that if the appeal is refiled after complying with all mandatory requirements, then the limitation should be counted from the date of the original filing. In Karnail Singh's case (supra), the Court accepted the explanation of the appellant that the file was mixed with the decided cases by the Clerk who left the job with the Advocate and on efforts being made, the file was traced by the Clerk later. However, in the present case, it is not the case of the applicant-appellant that after the file was misplaced any effort was made by the learned counsel or his clerk to trace the file. Rather, the clear case is that the learned counsel as well as his clerk forgot about the case. Even the applicant-appellant (client) did not bother to enquire about his case from his counsel. This is a case of total callousness and negligence on the part of the applicant/appellant. Even affidavit accompanying the application does not disclose the locus of deponent Ramesh Kumar. I am not inclined to accept the explanation particularly when the applicant-appellant has misrepresented in paragraph 2 of the application that file was returned to him lastly on 24.12.2007 with some objections, whereas the file was returned to him on 24.12.2005 with some objections. 15. Even affidavit accompanying the application does not disclose the locus of deponent Ramesh Kumar. I am not inclined to accept the explanation particularly when the applicant-appellant has misrepresented in paragraph 2 of the application that file was returned to him lastly on 24.12.2007 with some objections, whereas the file was returned to him on 24.12.2005 with some objections. 15. It is settled law that rigour of limitation must apply where the statute so provides. Limitation cannot be condoned on the ground of compassion or equitable considerations or where the party seeking condonation appears to be callous or negligent. My view is fortified with the following judgments of the Hon'ble Apex Court:- 16. In the case of P.K. RAMCHANDRAN Vs. STATE OF KERALA AND ANOTHER, (1997 ) 7, Supreme Court Cases, 556, wherein it has been held as under:- “The law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time.” 17. In the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd., (2004) 3 Supreme Court Cases, 250, the Hon'ble Supreme Court has held as follows:- “21. ....................... It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be in a valid or competent appeal.” 18. In view of the above, present application for condonation of delay of 688 days in re-filing the appeal is dismissed. 19. In view of the dismissal of the application for condonation of delay in re-filing the appeal, the application for condonation of 8 days delay in originally filing the appeal and the main appeal are also dismissed.