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2008 DIGILAW 848 (PNJ)

Krishan Dev Dhiman v. Mahesh Bhatia

2008-04-08

PERMOD KOHLI

body2008
Judgment Permod Kohli, J. 1. Reply to the application for condonation of delay has been filed today in Court. The same is taken on record. Copy of the reply has also been supplied to the counsel opposite. 2. Heard the learned Counsel for the parties at length. 3. Through the medium of this application, delay of 753 days in refiling the appeal is sought to be condoned. 4. The grounds for condonation of delay in refiling the appeal are indicated in paragraphs 2 and 3 of the application, which are reproduced hereunder: 2. That the Registry raised objections and after complying with the objections the appellant filed the appeal on 24.02.2003 and again objections raised and refiled on 03.07.2003, 21.02.2004 and lastly on 21.09.2004 after removing the objections and thereafter it was found that it has caused delay of 753 days in refiling the same beyond 40 days. 3. That this delay of 753 days in refiling has been caused as the Clerk of the counsel misplaced the same and has now left the service with the counsel and the appeal has been filed now on finding the same. Thus, the delay is neither wilful or international but due to the reasons mentioned above beyond control. 5. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court Clause 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. 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 Registry lastly on 21.09.2004 it was refiled in the Registry finally on 04.07.2006. The applicant in paragraph 2 of the application has misrepresented the facts by saying that the appeal was lastly refiled on 21.9.2004. This statement is totally false and contrary to the record. The record shows that the appeal was refiled lastly on 04.07.2006 and not on 21.09.2004. No sufficient reasons have been given for explaining the delay in refiling the appeal. Rather the applicant-appellant has tried to mislead the Court by mentioning wrong dates. This mis-statement itself, is sufficient to refuse judicial discretion in favour of the applicant-appellant. Even otherwise, the 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 who has now left the service and on finding the file, the same has been filed now. Ever otherwise, no details are given as to when the Clerk of the counsel has misplaced the file, when he had left the service of the counsel for the applicant-appellant and when the file has been found. 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 four 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 misplacing of the file and finding the same, when the Clerk of the counsel left the service and when the new Clerk/counsel found the file, the grounds urged in paragraph 3 of the CM. Application cannot be taken on its face value. 10. In the absence of there being any details about the misplacing of the file and finding the same, when the Clerk of the counsel left the service and when the new Clerk/counsel found the file, the grounds urged in paragraph 3 of the CM. Application cannot be taken on its face value. 10. 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. 11. 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. Even the applicant-appellant (client) do 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 contains no cogent details about the delay. I am not inclined to accept the explanation particularly when the applicant-appellant has misrepresented in paragraph 2 of the application that case was lastly refiled on 21.09.2004 whereas the file was returned to him on 21.09.2004 with some objections and the same was refiled lastly on 04.07.2006. 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 appeals to be callous or negligent. My view is fortified with the following judgments of the Honble Apex Court: 12. In the case of P.K. Ramchandrar v. State of Kerala and Anr., 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 rigor 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. 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. 13. In the case of Municipal Corporation of Delhi and Ors. v. International Society and Intelligence Agency Ltd., the Honble 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. 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. 14. In similar circumstances, in the case of Bhagwna v. Tara Chand and Ors. (2008-2)150 P.L.R. 73, (CM. No. 11634-C of 2007 in R.S.A. No. 4122 of 2007) decided on 18.01.2008, condonation of delay in refiling the appeal has been dismissed. 15. In view of the above, present application for condonation of delay of 753 days in re-filing the appeal, is dismissed. 16. In view of the dismissal of the application for condonation of delay in re-filing the appeal, the application for condonation of 14 days delay in originally filing the appeal and the main appeal are also dismissed.