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2016 DIGILAW 241 (UTT)

Jarnail Singh v. Gurbachan Singh

2016-06-06

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. Since all the appeals, titled above, depict the same controversy, hence have been heard and adjudicated together. Objections filed today in the Court by defendant/respondent no.1 in Second Appeal Nos.17 and 19 of 2016 are taken on record. Copy thereof has already been supplied to learned Sr. Counsel for the appellant. In the rest two appeals, similar objections have already been placed in the respective files. Having heard Mr. Rajendra Dobhal, learned Sr. Counsel for the appellant as well as Mr. Gurbachan Singh, respondent, appearing in person herein, it transpires that the plaintiff/appellant Jarnail Singh and defendant no.1 Gurbachan Singh are the real brothers. Plaintiff filed four suits for cancellation of four different sale deeds executed some time in the year 2005 and 2006 by their father Mohan Singh in favour of Gurbachan Singh. These suits were filed on different dates in the year 2012 wherein the Written Statement was filed and plea of Order 7 Rule 11(a)(d) was raised by the defendant seeking cancellation of such plaints. Learned Trial Judge accepted the plea in favour of defendant no.1 vide order dated 24.9.2013 and thus, rejected the plaints. This rejection order was challenged by way of filing four different revisions within the time limitation. Vide judgment dated 22.5.2015, the revisions were dismissed being not-maintainable since the order of rejection of plaint was appellable instead of revisable. Plaintiff, after almost two and half months, filed first appeals which were resisted by the defendant and he could succeed in getting the appeals dismissed on 24.11.2015 on the same premise viz. the plaintiff should have filed the appeals instead of revisions and since he could not present the appeals within time, therefore, the appeals too, were dismissed by learned Additional District Judge. Challenging the order of dismissal dated 24.11.2015 in all the matters, these four second appeals have been preferred before this Court. Learned Senior Counsel on behalf of the appellant has urged that the revision was filed because of wrong advice of the lawyer and the delay in filing such appeals should have been condoned u/s 14 of the Limitation Act. It was further submitted that after dismissal of revisions on 22.5.2015 by the Court below, at least, one-month time is provided by the limitation law to prefer the first appeal. It was further submitted that after dismissal of revisions on 22.5.2015 by the Court below, at least, one-month time is provided by the limitation law to prefer the first appeal. The only fault of the plaintiff was that instead of filing the appeal within such time, he took further one and half month in filing the same, and this delay/laches has been explained in the enclosed affidavit in so many words viz. he went to seek advice from one advocate to another, arranged the finances and applied the certified copy of such order on 22.5.2015. So, this was the cause of delay in preferring the first appeals before the District Judge. Per contra, Mr. Gurbachan Singh (respondent), appearing in person, herein, has resisted filing of these second appeals by opening his arguments that even the original suit, seeking cancellation of sale deeds, was excessively delayed so much so by seven years eversince the deeds were executed. Instantly, this Court is not supposed to look into the factual controversy or to examine the validity of the judgment and decree dated 24.9.2013 passed by the Trial Court but it is confined only to the dispute whether it was deserving for the First Appellate Court to dismiss the appeals solely on the ground that the plaintiff ought to have filed appeals assailing the judgment dated 24.9.2013 instead of revision. In my opinion, filing of revision mistakenly before the Court below has duly been explained by the plaintiff to the effect that it was on account of the wrong advice of the advocates, and that is why the Legislature, while contemplating such probability, has enacted Section 14 of the Limitation Act. Furthermore, the scope of the revision is very limited and that is why the grounds, which are raised at the time of preferring the revision, remain confined only to a very strict legal aspect whereas it is not the case when the appeal is heard. A Court, while hearing the appeal, is at liberty to look into the factual controversy as well. So, this Court is in agreement with the submissions put forth by learned Senior Counsel on behalf of the appellant and thus, set aside the impugned orders dated 24.11.2015, assailed in the second appeals, herein. A Court, while hearing the appeal, is at liberty to look into the factual controversy as well. So, this Court is in agreement with the submissions put forth by learned Senior Counsel on behalf of the appellant and thus, set aside the impugned orders dated 24.11.2015, assailed in the second appeals, herein. The First Appellate Court is hereby directed to decide the matter afresh looking to the merits of the impugned order dated 24.9.2013 passed by the Trial Judge under Order 7 Rule 11 CPC and with a further direction to re-adjudicate the same by a speaking order. All the four second appeals, titled above, stand allowed accordingly. Objections filed on behalf of the respondent Gurbachan Singh, as against the appeal, stand disposed of as such.