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2012 DIGILAW 1839 (PNJ)

Krishan Lal v. Harji Ram

2012-12-13

A.N.JINDAL

body2012
JUDGMENT : - A.N. Jindal, J The petitioner has sought to set aside the order dated 8.11.2012 (Annexure P/5), passed by the first appellate court. The petitioner-plaintiff had filed a suit before the trial court on 18.7.1998, which was dismissed on 25.4.2006, against which the appeal was preferred. The petitioner had also moved an application for condoning the delay of three years, six months and ten days in filing the appeal, on the ground that he was an employee and posted at Chandigarh, therefore, he could not go to Fatehabad in order to enquire about the decision of the case. It was further pleaded that his brothers Kishori Lal and Siri Chand were conducting the proceedings of the case and had taken the responsibility and to make expenses of litigation. They joined hands with the respondents and did not inform him about the decision of the case, about which he came to know only on 12.10.2009 when he contacted his counsel Mr. C.L. Narang, Advocate, Fatehabad. The first appellate court dismissed the application on 8.11.2012. Having heard the learned counsel for the petitioner at length, I do not find any merits in the contentions that the delay was not intentional and Kishori Lal and Siri Chand were bound to inform him about the decision of the case. There were two other plaintiffs besides him. He does not dispute that his two brothers (plaintiffs); Kishori Lal and Siri Chand knew well about the decision of the case as there was no clash of interest amongst them, therefore, it does not sound to the reason that they did not inform him for such a long time. Any way, the petitioner being party interested, he should have taken special interest to know about the fate of the case and could contact his counsel for the purpose. No sane man would remain silent for such a long time and finally enquire after more than three years. Condoning of such delay would amount to highjacking the statutory provisions of the Act as a whole. No sane man would remain silent for such a long time and finally enquire after more than three years. Condoning of such delay would amount to highjacking the statutory provisions of the Act as a whole. As regards the judgment referred by the learned counsel, delivered in case State (NCT of Delhi) vs. Ahmed Jaan 2008 (4) RCR (Civil) 126, the same is not applicable to the facts of the present case, as in that case, the delay was condoned because there was negligence on the part of the counsel who had mislead the party and the explanation was plausible. The learned counsel for the petitioner has further relied upon the judgment delivered by the Apex Court in case Improvement Trust, Ludhiana vs. Ujagar Singh and others, 2010 (3) Civil Court Cases 374, wherein it was observed as under :- “Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same.” The judgment is not applicable to the facts of the present case. The delay can be condoned in cases where the party is not absolutely negligent; no huge delay, and in case where proper intimation was not given. Here in this case, from the evidence, the court reaches the conclusion that there are no sufficient grounds to condone the delay and conduct and attitude of the party aggrieved was absolutely negligent so as to exclude from taking into consideration. The learned counsel has further relied upon the judgment delivered in case Saroj & others vs. Baljeet Singh and another 2010 (4) C.C.C. 532 (P&H) wherein it was observed as under :- “After hearing the learned counsel for the parties, I am of the view that this application deserves to be allowed as the applicants have good case on merits which also constitutes a sufficient cause for the purpose of condonation of delay. Moreover, the applicants are rustic villagers and are the claimants, which include the widow and her minor children.” Here in this case, it cannot be said by any stretch of imagination that the petitioner was a layman and unknown to the pendency of the suit before the trial court and the procedural law. He was employee and posted at Chandigarh and well aware of the complications which may arise for not filing the appeal in time. His other two brothers were also contesting with him, but neither he enquired from them nor from his counsel about the fate of the case. He was employee and posted at Chandigarh and well aware of the complications which may arise for not filing the appeal in time. His other two brothers were also contesting with him, but neither he enquired from them nor from his counsel about the fate of the case. The delay is not a little bit, but of more than three years, which if condoned, would amount to mal administration of justice and also seriously prejudice the rights of the respondents in whom the rights have already been vested on the decision of the suit against the petitioner-plaintiff. No grounds to interfere.