Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 364 (PNJ)

Ram Singh v. Jaswant Kaur

2010-01-15

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. This revision petition is directed against order dated 3.12.2009 (Annexure P1) passed by the Additional District Judge, Ludhiana (hereinafter described as the first appellate Court) vide which the application under section 5 of the Limitation Act (for short, the Act) was accepted so as to permit the plaintiffs-respondents to prefer appeal against the judgment and decree dated 3.11.2006 of the Civil Judge (Junior Division), Ludhiana (referred to hereinafter as the trial Court) beyond the period of limitation. 2. The civil suit filed by the respondents against the defendants-petitioners for joint possession and declaration was dismissed by the trial court under Order 17 Rule 3 of the C. P. C. as they failed to lead any evidence in support of their case. The respondents did not prefer the appeal within the period of limitation. However, after a delay of more than sixteen months, they did so and for condonation of the same, an application under Sec.5 of the act was filed by them, which has been allowed by the first appellate Court by the impugned order. 3. It has been contended by the learned counsel for the petitioners that the first appellate Court has erred in accepting the application for condonation of delay as there was no satisfactory explanation for doing so and, therefore, the impugned order is liable to be set aside. On the other hand, learned counsel for the respondents has contended that the impugned order is totally justified in the given set of circumstances and the law relating to the condonation of delay has to be construed liberally as has been held by the supreme Court in various judgments as ordinarily a litigant does not stand to benefit by delaying the filing of an appeal. 4. I have thoughtfully considered the rival contentions and have gone through the whole record. 5. There is, indeed, no doubt, that the law of limitation has been liberally construed so as to benefit a litigant to ensure that the matter is not thrown out at the threshold, but, at the same time, the Court cannot be oblivious to the bona fides of a person, who invokes the provisions of section 5 of the Act to persuade it to condone the delay. The Court is required to examine as to whether such delay is bona fide and unintentional or not, but if a person has merely slept over his rights and then take up a plea of ignorance, then, in my considered opinion, there is no justifiable reason to condone the delay and more-so when the delay is exemplary. If the facts of the instant case are to be seen, then it is to be noticed that the respondents were prosecuting the proceedings in the civil suit through Bhajan singh, husband of respondent no.1-Jaswant Kaur. A special power of attorney was executed by respondent no.1 in his favour. He, in turn, had executed a power of attorney in favour of Balwant Singh enabling him to attend to the proceedings in the civil suit. On the day, i. e. , 3.11.2006, when the trial Court decided the suit, it passed a separate order wherein it was noticed that no evidence of the plaintiffs was present and Jaswant Singh had come present on their behalf and despite last opportunity, no witness was brought even though on the previous date it was directed that they would bring their evidence at own responsibility. Bhajan Singh, husband of respondent no.1, had stated before the trial Court that no evidence was present and it could pass any order and taking into account this statement and also other circumstances, it did not deem fit to grant further adjournment and also noticed that the respondents did not seem interested in prosecuting the case. Thereafter, the evidence of the respondents was closed by the order of the Court. Now, if the contents of order dated 3.11.2006 are juxtaposed against the pleadings of the respondents in the application under Sec.5 of the Act which was moved before the first appellate Court, then it is revealed that the they averred that they had no knowledge of the passing of the said order. In paragraph 2 of that application, it was stated as under:- "2. That the impugned order was passed by the learned trial Court on 3.11.2006. However, the appellants/applicants have no knowledge of it. The plaintiff/appellant no.1 who is resident of Ludhiana, is an old aged lady suffering from various diseases. In paragraph 2 of that application, it was stated as under:- "2. That the impugned order was passed by the learned trial Court on 3.11.2006. However, the appellants/applicants have no knowledge of it. The plaintiff/appellant no.1 who is resident of Ludhiana, is an old aged lady suffering from various diseases. The appellant/plaintiff no.2 is residing abroad and as such, they both have given special power of attorney (appellant no.1 herself and appellant no.2 through her general attorney Bhajan Singh) to balwant Singh son of Joginder Singh, resident of village Dhandra, Tehsil and district Ludhiana. " In the subsequent paragraphs also, denial and ignorance have been pleaded , as also the illness of respondent no.1, which is not borne out from any evidence on record. 6 Once the special power of attorney holder of the respondents was present in the Court and got his statement recorded that he had no objection to the passing of any order by the trial Court, then, the question of the respondents being ignorant about the proceedings does not hold any conviction. 7. Since the bona fides of the respondents are severally strained on account of the aforesaid reasons, I am of the considered opinion that the benefit of condonation of delay has wrongly been allowed by the first appellate court. 8. Accordingly, the revision petition is allowed and the impugned order is set aside. As a consequence thereof, the appeal preferred by the respondents before the first appellate Court shall be deemed to have been dismissed as time barred. 9. All pending civil miscellaneous applications are also disposed of in view of the above.