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2014 DIGILAW 506 (HP)

Thakur Dass v. Amrit Lal

2014-04-30

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. Complaint is that the impugned order passed by learned District Judge, Hamirpur in an application under Order 41 Rule 3-A CPC and Section 5 of the Limitation Act registered as Civil Misc. Application No.341 of 2012 dismissing thereby the application is contrary to the facts and circumstances of this case and also the evidence available on record. The same as such being not sustainable in the eyes of law has been sought to be quashed and set aside on the grounds inter alia that learned lower appellate Court has taken a hyper-technical approach in the matter and failed to understand the factum of the petitioner rustic villagers having no knowledge of legal formalities and interpretation of the orders/judgments passed by the Court of law and to the contrary disposed the petition in a cursory manner without application of mind. Also that the judgment and decree passed in the main suit was challenged by petitioners before learned lower appellate Court on several cogent and plausible grounds and also made out a clear-cut case for condonation of delay, however, the Court below without considering the same in its right perspective has dismissed the application in an unlawful manner. 2. It is seen that the suit filed by the petitioners herein was decreed for the relief of permanent prohibitory injunction by learned Civil Judge (Junior Division) Nadaun vide judgment and decree dated 27th April 2009, whereas dismissed qua the relief of mandatory injunction. The allegations that the defendant-respondent raised construction over the land in dispute even after passing of interim injunction, contempt proceedings were initiated by the petitioners against him. The case as set out for seeking the relief of condonation of delay is that the petitioners came to know about the judgment and decree passed in the suit on 24.12.2011 when learned District Judge passed orders in contempt proceedings i.e. Civil Miscellaneous Appeal No.28 of 2011. It is thereafter they made an application for supply of certified copy of judgment and decree on 22.04.2012, which was made available to them on 28.04.2012. The record reveals that the appeal along with the application for condonation of delay was thereafter presented in the lower appellate Court on 14.5.2012. Learned lower appellate Court after taking on record the reply thereto has framed the following issues:- “1. Whether there is sufficient cause for condoning the delay in filing the appeal? 2. The record reveals that the appeal along with the application for condonation of delay was thereafter presented in the lower appellate Court on 14.5.2012. Learned lower appellate Court after taking on record the reply thereto has framed the following issues:- “1. Whether there is sufficient cause for condoning the delay in filing the appeal? 2. Relief.” 3. Petitioner-plaintiff Thakur Dass has appeared in the witness box as PW-1. On behalf of respondent-defendant no evidence, however, was produced. Learned lower appellate Court on taking into consideration the given facts and circumstances and also the evidence has concluded as under:- “9. No doubt, the Courts are liberal in condoning the delay, but at the same time the delay cannot be condoned when the party seeking condonation of delay is not able to show sufficient cause and the delay is not at all explained. In this case the applicant No.1 himself has admitted that he had the knowledge of the decision of the trial Court dated 27.04.2009 on 27.04.2009 itself and further that he himself had been appearing on the hearings before the trial court in the case. In these circumstances the plea of the applicants can not be believed that they had no knowledge that the mandatory injunction has been refused to them by the trial court vide its judgment dated 27.4.2009. Admittedly, this appeal has been filed by the appellants after a delay of more than three years and the reasons assigned for the delay are not genuine at all. It may be true that the applicants are rustic villagers and are not well conversant with the legal formalities, but it is a settled proposition of law that ignorance of law is no excuse. Moreover, in the trial court they were represented by the same counsel by whom they are represented in this appeal. Due to this, it is not believable that they had no knowledge prior to 22.04.2012 that the mandatory injunction was refused to them by the trial court. All this shows that the applicants have failed to prove that they were prevented by sufficient cause from filing the appeal and, being so, the delay can not be condoned. The issue is accordingly decided.” 4. The application therefore, was dismissed vide order impugned in this petition. 5. All this shows that the applicants have failed to prove that they were prevented by sufficient cause from filing the appeal and, being so, the delay can not be condoned. The issue is accordingly decided.” 4. The application therefore, was dismissed vide order impugned in this petition. 5. Having gone through the record and also the rival submissions, this Court is of the considered opinion that learned lower appellate Court has not committed any illegality and irregularity in dismissing the application for the reason that in the present case the petitioners-plaintiffs have miserably failed to show sufficient cause warranting the condonation of delay as occurred in filing the appeal. The suit was decreed by learned Civil Judge (Junior Division), Nadaun vide judgment and decree dated 27.04.2009. As per own admission of the petitioners-plaintiffs, they were pursuing the contempt proceedings initiated at their instance against the respondent-defendant. The counsel representing them in the suit and also in contempt proceedings was the same person. Therefore, it lies ill to say that they only came to know about the dismissal of the suit from the order passed by learned District Judge in Civil Misc. Appeal No. 28 of 2011 arises out of the contempt proceedings they initiated against the respondent-defendant. Even after 24.12.2011, they were not prompt in pursuing the remedy of filing appeal against the judgment and decree because the application for making them available the certified copy of judgment and decree was made on 22.4.2012 i.e. after about four months from the day when they acquired the knowledge of the decision of the suit. Not only this, but on receipt of the certified copy of the judgment and decree also they were not prompt because the same was made available to them by the copying agency on 28.04.2012, however, the appeal along with the application for condonation of delay was filed only on 14.5.2012. The present is a case of inordinate delay of more than three years as occurred in filing the appeal. The same in view of the pleadings is not satisfactorily explained. The record does not disclose that the delay so occurred was neither intentional nor deliberate and rather bonafide. 6. On the other hand, with the expiry of period prescribed for filing the appeal/petition, a valuable right has accrued in favour of the opposite party. The same in view of the pleadings is not satisfactorily explained. The record does not disclose that the delay so occurred was neither intentional nor deliberate and rather bonafide. 6. On the other hand, with the expiry of period prescribed for filing the appeal/petition, a valuable right has accrued in favour of the opposite party. The same, except for a case where sufficient cause is found to have been shown for condonation of delay, should not be taken away. The present is not an exceptional case of the nature hereinabove for the reason that the petitioners have failed to show sufficient cause warranting the condonation of delay. What to speak of sufficient cause, no plausible and reasonable explanation is forthcoming on record with regard to the delay so occurred in fining the appeal. The present, therefore, is a case where a valuable right accrued in favour of the respondent-defendant on the expiry of the period of limitation prescribed in filing the appeal can not be taken away. 7. Even on merits also, no case in favour of the petitioners-plaintiffs is found to be made out for the reason that the suit has been decreed in their favour for the relief of permanent prohibitory injunction. So far as the relief of mandatory injunction they sought in the plaint is concerned, learned trial Judge has considered the same with the help of the evidence available on record and rightly rejected. The cumulative effect of the discussion hereinabove, therefore, would be that there is no force in this petition and the same is accordingly dismissed.