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2011 DIGILAW 929 (PNJ)

Malkiat Singh v. Balbir Singh

2011-03-25

RAM CHAND GUPTA

body2011
JUDGMENT RAM CHAND GUPTA, J. - The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 15.10.2010, Annexure P4, passed by learned Additional District Judge, Jalandhar, in case titled as Malkiat Singh and another v. Balbir Singh and others, vide which application filed by petitioners under Section 5 of the Limitation Act (hereinafter to be referred as `the Act') for condonation of delay in filing the appeal has been dismissed and in consequence thereof, appeal filed by them has also been dismissed. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned appellate Court. 3. Facts relevant for the decision of present revision petition are that a suit for a decree for separate possession of property, fully described in the heading of the plaint, was filed by respondents no.1 and 2-plaintiffs against present petitioners-defendants no.1 and 2 and respondent no.3-defendant no.3 on the brief allegation that the said property was owned by Puran Singh son of Inder Singh, father of plaintiffs and defendants no.1 and 2 and after the death of Puran Singh, the same was inherited by plaintiffs and defendants no.1 and 2 in equal share to the extent of 1/4th share each. The property was joint and had not been partitioned so far, whereas respondent no.3-defendant no.3 alleged that he had purchased some portion of the said property from defendants no.1 and 2 and hence, he has threatened to raise construction over the same for which he has got no right. 4. Notice of the suit was given to defendants. Respondent no.3-defendant no.3 did not contest the suit and rather suffered a statement that he is having no objection if property is partitioned. However, petitioners-defendants no.1 and 2 filed the written statement contesting the same. Issues were framed by learned trial Court. Evidence was adduced by respondents-plaintiffs, however, no evidence was adduced by petitioners-defendants no.1 and 2 and hence, suit filed by respondents-plaintiffs was decreed and preliminary decree was passed in favour of respondents-plaintiffs and against the present petitioners-defendants no.1 and 2 holding that the property in dispute is joint of the plaintiffs and present petitioners-defendants no.1 and 2 to the extent of 1/4th share each. 5. The judgment and decree is dated 10.1.2009. 5. The judgment and decree is dated 10.1.2009. However, the first appeal was filed before learned Additional District Judge, Jalandhar, on 5.12.2009, i.e., after about 11 months of the passing of the judgment and decree. Hence, an application for condonation of delay in filing the appeal under Section 5 of the Act was also filed by present petitioners-defendants, which was opposed by respondents-plaintiffs. 6. Learned first appellate Court framed the following issues on the application for condonation of delay in filing the appeal:- “1. Whether there are sufficient grounds to condone the delay in filing the appeal? OPA 2. Whether the application is not maintainable? OPR 3. Relief.” Parties were given opportunities to lead evidence in support of their respective contentions. 8. After hearing both the parties, the application for condonation of delay in filing the appeal was dismissed vide impugned order dated 15.10.2010 and as a consequence thereof, the appeal was also dismissed having not filed within the prescribed period of limitation. 9. It has been contended by learned counsel for the petitioners that counsel for the petitioners-defendants in the lower court did not inform them about the fate of the suit and hence, there was a delay in filing the appeal. It is further contended that the Court should adopt liberal approach in matter of condonation of delay. It is also contended that petitioners have a very good case on merit and hence, taking into consideration the merit of the case, learned first appellate Court should have condoned the delay and should have decided the appeal on merit. 10. On the other hand, it has been contended by learned counsel for the respondents-plaintiffs that when no evidence was adduced by petitioners-defendants before leaned trial Court, it cannot be said that they are having good case on merit. It is further contended that no cause, what to talk of sufficient cause, has been shown by petitioners-defendants for condonation of delay in filing the appeal and rather a very vague plea has been taken that they were not informed by their counsel about the fate of their suit and, however, no evidence has been adduced in order to prove the said assertion. 11. There is no dispute regarding legal proposition that Courts should adopt liberal approach in the matters of condonation of delay. 12. 11. There is no dispute regarding legal proposition that Courts should adopt liberal approach in the matters of condonation of delay. 12. However, liberal approach cannot be stretched to such an extent as to render the law of limitation completely redundant and infructuous. Law is also well settled that if there is no mala fide on the part of petitioners and if petitioners are having a good case on merits, the same can be taken into consideration for condonation of delay in filing the appeal. There is no straight jacket formula to come to the conclusion of sufficient and good grounds for condonation of delay. Rather, each case has to be weighed from its facts and circumstances in which the party acts and behaves. 12. Hence, in view of this legal proposition this Court is to see as to whether any case for condonation of delay of about 11 months in filing the appeal was made out and as to whether any illegality or material irregularity has been committed by learned first appellate Court in exercising its discretion in dismissing the application filed by petitioners-defendants for condonation of delay in filing the appeal. 13. A perusal of the application shows that a very vague plea has been taken that counsel for the petitioners-defendants did not inform them about the fate of the suit and that they came to know about the passing of the decree against them when they received summons of the Court for the purpose of partition in a case filed by respondents-plaintiffs and, thereafter they contacted their Advocate, applied for certified copy of the order and after receiving the copy, appeal was filed. However, nothing has been mentioned as to when they received the summons and as to why they did not contact their counsel earlier to know the fate of the case. No affidavit of earlier counsel was also filed to the effect that he could not contact the petitioners and could not inform them about the fate of the case. Moreover, when no evidence was adduced by petitioners-defendants before learned trial Court, it cannot be said that they are having good case on merit or that the application moved by them for condonation of delay in filing the appeal is a bona fide one. 14. Moreover, when no evidence was adduced by petitioners-defendants before learned trial Court, it cannot be said that they are having good case on merit or that the application moved by them for condonation of delay in filing the appeal is a bona fide one. 14. Learned first appellate Court has placed reliance upon a judgment passed by a coordinate Bench of this Court in Baldev Singh v. Smt. Binder and others, 2010(3) Law Herald (P&H) 1977, wherein it has been observed that it has become a practice to level allegations against counsel for their own negligence so as to avail benefit of condonation of delay in view of law that a party should not suffer for fault of the counsel. 15. Hence, in view of these facts, in my view there is no ground to condone the delay of 11 months in filing the appeal. It was also duty of the petitioners-applicants to remain in touch with their counsel in the trial Court to know about the status and fate of the suit filed against them. Hence, merely in view of the law that court should adopt liberal approach in matters of condonation of delay, the liberal approach cannot be stretched to such an extent as to render the law of limitation completely redundant and infructuous. If long delay of 11 months is condoned on such flimsy grounds, as mentioned in the application, it would amount to total ignoring the law of limitation, which cannot be permitted under the law. 16. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in dismissing the application for condonation of delay in filing the appeal and as a consequence thereof dismissing the appeal, and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 17. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. 18. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. 18. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. Petition Dismissed.