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Himachal Pradesh High Court · body

2018 DIGILAW 2097 (HP)

Kamlesh Kumari v. Madan Lal

2018-11-28

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dis-satisfied with order dated 1.7.2015, passed by the learned District Judge, Kangra at Dharamshala, in CMA No. 380/13/08, whereby an application under Section 5 of the Limitation Act, praying therein for condonation of delay in maintaining the accompanying appeal, came to be dismissed, applicant-petitioner (herein after referred to as “the applicant”) has approached this Court in the instant proceedings. 2. Facts, as emerge from the record are that applicant filed a suit for permanent prohibitory and mandatory injunction against the respondents in the Court of learned Civil Judge (Jr. Div.) Court No.1 Dharamshala, which came to be dismissed by the court below vide judgment dated 29.9.2006. Applicant, who was plaintiff before the court below, failed to lay challenge to the judgment dated 29.9.2006, passed by the learned Civil Judge, qua suit having been filed by him well within the time and as such, he filed an application under Section 5 of the Limitation Act along with appeal under Section 96 of the CPC, laying therein challenge to aforesaid judgment in the court of learned District Judge, Kangra at Dharamshala. Applicant averred in the application that he is old man and is patient of Sugar. He engaged a counsel from Kangra to contest his case, who assured him that he would inform him about the decision of the case as and when same is decided. He also averred that counsel had assured that he would obtain certified copy of the judgment and decree and supply the same to him. Applicant averred in the application that factum with regard to dismissal of the suit having been filed by him on 29.9.2006 was never informed to him by his counsel and as such, he was unable to file appeal in the competent court of law well within the stipulated period. He also averred in the application that his son also contacted his counsel, but no information with regard to dismissal of the case was ever given to him. Applicant specifically stated in the application that factum with regard to passing of judgment dated 29.9.2006 came to his notice for the first time when he was served with a notice in the execution petition having been filed by the respondents, whereafter he applied for the judgment and decree passed by the learned court below on 28.2.2008, which was subsequently received by him on 29.3.2008. In the aforesaid facts and circumstances, applicant prayed that since he had no knowledge with regard to passing of judgment dated 29.9.2006, passed by the court blow, accompanying appeal, laying therein challenge to aforesaid judgment came to be filed after a considerable delay and as such, delay being bona-fide deserves to be condoned. 3. Respondents while refuting the aforesaid claim set-up in the application, contended that application deserves to be dismissed being hopelessly time barred. Respondents categorically averred in the reply that judgment and decree dated 29.9.2006, was passed by the learned Civil Judge in the presence of the applicant, copy whereof, he had also attached in case titled Karam Chand v. Ramlok pending before the SDM Dharamshala. Respondents further averred that judgment was pronounced by the court in the presence of the parties, whereafter copy of the judgment was procured by the learned counsel for the applicant well within time. Respondents also averred that applicant is an educated person and has retired from HP Police Service Department and as such, inordinate delay being intentional and deliberate cannot be condoned. On the basis of aforesaid pleadings adduced on record by the respective parties, court below framed following issues: “1. Whether there are sufficient causes for condoning the delay in fling the appeal? OPP. 2. Relief.” 4. Applicant, in support of aforesaid issues, examined himself as his own witness as AW1 and placed on record his statement in affidavit Ext.AW1/A, whereas respondent No.1 examined himself as witness and placed on record his statement in affidavit. Learned District Judge on the basis of pleadings as well as evidence adduced on record by the respective parties dismissed the application for condonation of delay having been filed by the applicant. In the aforesaid background, applicant has approached this Court in the instant proceedings, praying therein for condonation of delay in maintaining the appeal after setting aside the impugned order dated 1.7.2015, passed by the learned District Judge, Kangra at Dharamshala, H.P. 5. Having heard learned counsel for the parties and perused material available on record, this Court finds no illegality and infirmity in the impugned order passed by the court below, rather same appears to be based upon proper appreciation of facts as well as evidence adduced on record by the respective parties. Having heard learned counsel for the parties and perused material available on record, this Court finds no illegality and infirmity in the impugned order passed by the court below, rather same appears to be based upon proper appreciation of facts as well as evidence adduced on record by the respective parties. In the case at hand, applicant set-up a case that factum with regard to passing of the judgment dated 29.9.2006 by learned Civil Judge (Jr. Division), Dharamshala, whereby his suit was dismissed, was not in his knowledge. But evidence available on record clearly suggests that aforesaid judgment was passed in the presence of applicant, whereafter, he after having obtained copy, placed the same in other case filed by him in the court of ld. SDM. Applicant in his cross-examination has categorically admitted that judgment in the case was pronounced on 29.9.2005 in his presence. He also admitted that he has filed appeal after two years of passing of the judgment. In his cross-examination, he admitted that he filed appeal after an inordinate delay since he was ill. 6. Since it stands duly proved on record that applicant was present at the time of the pronouncement of judgment dated 29.9.2006, having been passed by the learned Civil Judge, averments contained in the application that factum with regard to passing of the aforesaid judgment was not in the knowledge of the applicant, cannot be accepted being totally false. It is quite apparent from the record that applicant with a view to get the delay condoned in maintaining the accompanying appeal, furnished altogether false facts before the court and he failed to approach the court with clean hands. The applicant while tendering his statement in affidavit Ext.AW1/A solemnly affirmed that judgment dated 29.9.2006 passed in the suit having been filed by him was pronounced in his absence, which fact is totally contrary to his admission made in his cross examination, which conduct of him clearly suggests that he failed to approach the court with clean hands, rather he attempted to hoodwink the Court. 7. Reliance is placed upon the judgment passed by the Hon’ble Apex Court in H. Dohil Constructions Company Pvt. Ltd. v. Nahar Exports Limited and Anr., (2015) 1 SCC 680 , wherein Hon’ble Apex Court has held that inordinate delay in filing the appeal cannot be allowed mechanically without there being plausible explanation rendered on record by the applicant. 7. Reliance is placed upon the judgment passed by the Hon’ble Apex Court in H. Dohil Constructions Company Pvt. Ltd. v. Nahar Exports Limited and Anr., (2015) 1 SCC 680 , wherein Hon’ble Apex Court has held that inordinate delay in filing the appeal cannot be allowed mechanically without there being plausible explanation rendered on record by the applicant. It is also held that delay cannot be condoned as a matter of course, rather courts while considering the application for condonation of delay are required to scrutinize the material adduced on record by the parties seeking condonation of delay with utmost caution so that no prejudice is caused to the opposite party in whose favour some right may have accrued on account of delay caused by other party in approaching the competent court of law. In the aforesaid judgment, Hon’ble Apex Court has taken note of its recent judgment rendered in case titled Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 wherein certain principles were culled out to be kept in mind while dealing with application for condonation of delay. Para-23 of the judgment is reproduced herein below: 23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCC pp 659-59) 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.” In the judgment referred herein above, Hon’ble Apex Court has observed that there is distinction between inordinate delay and delay of short duration or few days, first category warrants strict approach, whereas second warrants for liberal delineation. Hon’ble Apex Court has also observed that the conduct, behavior and attitude of the party relating to its inaction or negligence are relevant factors to be taken into consideration and courts are required to scale of balance of justice in respect of both the parties. Most importantly, in the principles, which have been reproduced herein above, the Hon’ble Apex Court has culled out principle that no presumption can be attached to deliberate causation of delay, but gross negligence on the part of the counsel or litigant is to be taken note of. 8. Consequently, in view of the discussion made herein above, this Court sees no illegality and infirmity in the impugned order passed by the learned District judge and as such, same deserves to be upheld. Accordingly, the present petition is dismissed being devoid of any merits.