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2016 DIGILAW 2468 (HP)

Aruna Bedi v. Subhash Kapil

2016-11-23

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. 2. The appeal against the judgment and decree passed by learned District Judge, Kullu on 1.4.2009 in Civil Appeal No. 33 of 2007 is barred by a period over six years. The delay as occurred has been sought to be condoned on the grounds inter-alia that Shri J.S. Bedi, the husband of the applicant/appellant was not a party to the suit nor in the appeal in the Court of learned District Judge, Kullu and to the contrary learned lower appellate Court has ordered to recover the decretal amount i.e. Rs.1,40,004/- from him. Said Shri J.S. Bedi had expired during the pendency of the suit in the trial Court i.e. on 8th October, 2006. Neither he nor the applicant/appellant were aware of the Civil Suit which was filed in the Court of learned Civil Judge (Senior Division), Kullu and also the appeal in the learned lower appellate Court. When the applicant came to know about the filing of the suit and also the appeal in the Court below, she applied for certified copy of the judgment and decree, under challenge in the month of June, 2015 and thereafter filed the appeal along with this application in this Court. 3. The application, no doubt, has been resisted and contested on behalf of the respondents/non-applicants, however, in rejoinder, the applicant/appellant has further explained the delay as occurred in filing the appeal. 4. Having regard to the submissions made by learned counsel on both sides as well as record available at this stage, admittedly, Shri J.S. Bedi, the deceased husband of applicant was not arrayed as defendant in the suit. The suit was dismissed by the trial Court. The same, however, has been decreed by learned lower appellate Court for the recovery of Rs. 1,27,908/- with pendente-lite interest @ 12% per annum. The future interest @ 7.5% per annum has also been awarded on the decretal amount. The decree though has been passed against the defendant i.e. the Department of Irrigation and Public Health, Division No. 1, Kullu and the State of Himachal Pradesh through Collector Kullu District at Kullu, however, learned lower appellate Court has left it open to the defendant to recover the same from Shri J.S. Bedi. The decree though has been passed against the defendant i.e. the Department of Irrigation and Public Health, Division No. 1, Kullu and the State of Himachal Pradesh through Collector Kullu District at Kullu, however, learned lower appellate Court has left it open to the defendant to recover the same from Shri J.S. Bedi. No such direction could have been passed without hearing said Shri J.S. Bedi, who as a matter of fact, had already expired during the pendency of the suit in the trial Court. No doubt, as per stand of the defendant-State, the applicant was informed vide letter dated 20.10.2009, Annexure R-1 about the judgment passed by learned lower appellate court and the recovery of the amount in question from said Shri J.S. Bedi, however, it cannot be said that this letter was delivered to her or that she failed to respond to the same intentionally and deliberately. On the other hand, the plea of the applicant/appellant that she came to know about the recovery of Rs. 1,70,170/- vide office order Annexure RA-1 dated 5.9.2014 qua sanction of gratuity modified further vide another office order Annexure RA-2 dated 28.01.2015 from due and admissible amount seems to be nearer to the factual position. She has further claimed that on coming to know about the recovery of above-said amount, she approached the defendant, however, the necessary details were not supplied to her. When she came to know about the filing of the suit and the judgment and decree passed by learned lower appellate court, she applied for certified copies thereof in the month of June, 2015 and immediately after receipt thereof, filed the appeal in this Court. The explanation as set-forth is not only reasonable but plausible also, because when the husband of the applicant was not a party to the suit, it can reasonably be believed that institution of the suit and the appeal in the learned lower appellate court was not in her knowledge. Otherwise also, that part of the judgment and decree which pertains to a direction qua recovery of decretal amount from Shri J.S. Bedi, the deceased husband of the applicant/appellant is patently illegal. Otherwise also, that part of the judgment and decree which pertains to a direction qua recovery of decretal amount from Shri J.S. Bedi, the deceased husband of the applicant/appellant is patently illegal. Since said Shri J.S. Bedi had already expired on the day when the trial Court has passed the impugned judgment and decree, no such direction could have been issued without ascertaining as to whether he was alive or not on that day and if alive, without affording an opportunity of being heard to him. Therefore, without impleading the applicant/appellant as party in the appeal and affording her an opportunity of being heard, a direction, penal in nature could have not been issued. The present as such is a fit case where on condonation of delay, the appeal deserves to be entertained and decided on merits. Being so, I allow this application and order to condone the delay as occurred in filing the appeal. The application stands accordingly disposed of.