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2018 DIGILAW 3734 (PNJ)

Daljit Singh v. Satish Randhawa

2018-09-04

JASPAL SINGH

body2018
JUDGMENT Jaspal Singh, J. - CM No.3069-CII of 2018 1. Application is allowed as prayed for and certified copy of testimoney of attorney of the petitioner namely Jaspreet Singh (P-7) is taken on record subject to all just exceptions and be tagged at appropriate place. Civil Revision No.8349 of 2017 By virtue of the instant civil revision prefered under Article 227 of the Constitution of India, petitioner has sought for setting aside the order dated 01.08.2017 (P-4) passed by learned Additional District Judge, SAS Nagar (Mohali), whereby an application filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal has been dismissed and consequent to dismissal of an application, appeal has also been dismissed and further seeking direction to the Lower Appellate Court to decide the appeal on merits. 2. The brief facts giving rise to the instant revision petition are that petitioner preferred Civil Suit No.55 of 2010 captioned as Daljit Singh vs. Satish Randhawa for possession by way of specific performance on the basis of an agreement to sell dated 04.12.2004 executed by the respondent. But that suit was dismissed vide judgment and decree dated 03.09.2013 passed by Additional Civil Judge (Senior Division), Dera Bassi. Aggrieved against the said judgment and decree dated 03.09.2013, petitioner preferred civil appeal, since there was a delay in filing the appeal before the Lower Appellate Court, an application under section 5 of Limitation Act, 1963 (for short 'Act') for condonation of delay was preferred. The aforesaid application moved under Section 5 of the Act was dismissed vide order dated 01.08.2017 passed by Additional District Judge, SAS Nagar, Mohali and being dissatisfied, petitioner has preferred the instant petition. 3. In response to notice of Civil Revision, Mr. Gaurav Singla, Advocate appeared and represented the respondent. 4. While assailing the impugned judgment dated 01.08.2017 passed by the lower appellate court while dismissing the appeal as well as an application under Section 5 of the Act, it has been contended by learned counsel for the petitioner that the same are absolutely against the evidence available on file and settled canons of law and misappreciation of the facts as well as the law on the point of limitation has resulted into miscarriage of justice. He further contends that there is no fault on the part of the petitioner on account of which delay in presentation of the appeal occurred. He further contends that there is no fault on the part of the petitioner on account of which delay in presentation of the appeal occurred. Rather, it was only on account of the reason that the petitioner had engaged Sh. Gur Rattan Pal Singh, Advocate to prosecute his case and subsequently he visited the resident of his counsel in the first week of October, 2015 and came to know that his counsel has already been taken away by the nature in the first week of April, 2014. It was only thereafter, petitioner enquired about the fate of his case and after checking a number of files lying in his office, some papers were found and there was only thereafter, an appeal before the lower appellate court was preferred along with an application for condonation of delay. The said application and consequent accompanying appeal have been dismissed by the lower appellate court mainly for the reason that applicant-appellant did not appear personally in the witness box rather examined his attorney holder Jaspreet Singh and further that attorney holder is though competent to depose about the facts which are in his personal knowledge but is not competent to appear in the witness box as the capacity of a party. 5. Learned counsel for the petitioner further urged that in the similar matter, SLP was filed after the revision petition was dismissed by this Court and same was disposed of vide order dated 03.11.2017, whereby in those Special Leave to Appeals the petitioners were granted liberty to file the review petitions which are also listed today. In fact, even Jaspreet Singh was also not cross-examined as a result of which, the matter was disposed of. 6. On the other hand, learned counsel for the respondent has submitted that there is no illegality or infirmity in the impugned order dated 01.08.2017 (P-4) passed by the lower appellate court. In fact, petitioner was very much aware of the dismissal of the suit vide judgment and decree dated 03.09.2013 and he did not intentionally opt to prefer an appeal which was subsequently filed after an inordinate delay. The petitioner was granted due opportunity to explain the delay. In fact, petitioner was very much aware of the dismissal of the suit vide judgment and decree dated 03.09.2013 and he did not intentionally opt to prefer an appeal which was subsequently filed after an inordinate delay. The petitioner was granted due opportunity to explain the delay. Since he fails to bring any cogent or convincing evidence on record, an application moved by him under Section 5 of the Act was dismissed and consequent upon the dismissal of the application for condonation of delay, appeal also stood dismissed. 7. Learned counsel for the respondent further contends that petitioner has concocted a false story with regard to the fact that some papers were handed over to Mr. Gur Rattan Pal Singh, Advocate for filing an appeal, but he did not prefer an appeal and ultimately breathed his last in the month of April, 2014. It cannot be expected that after the dismissal of the suit vide judgment and decree dated 03.09.2013, petitioner would not visit or contact his counsel continuously approximately for two years. Since, the impugned order is absolutely in consonance with the evidence and there is no explanation for the condonation of delay as well as legal proposition, no interference by this Court would be justified and instant revision petition deserves to be dismissed. 8. After having weighed the rival contentions of the learned counsel for the parties and bestowing due consideration to the documents as well as legal proposition applicable to the facts and circumstances of the case in hand, this Court is of the considered view that the impugned order dated 01.08.2017 passed by the lower appellate court is not legally and factually justified and is liable to be set aside. 9. From the records available one thing is evident that Sh. Gur Rattan Pal Singh, Advocate is no more in this world and was taken away by the nature in the month of April, 2014 and subsequently he preferred an appeal after a delay in the month of October, 2015. 10. The law of limitation is enshrined in the legal maxim "Interest Reipublicae Ut Sit Finis Litium" i.e. (i) it is for the general welfare that a period be put to litigation. The Rules of Limitation are not meant to destory the rights of the parties, rather the idea is that every legal remedy must be kept alive for some reasonable period. 11. The Rules of Limitation are not meant to destory the rights of the parties, rather the idea is that every legal remedy must be kept alive for some reasonable period. 11. It is also equally settled that by catena of judgments that the Court should adopt a liberal approach in considering application for condonation of delay on ground of sufficient cause under Section 5 of the Act. Such an observation was also made by the Hon'ble Apex Court in case Lanka Venkateswarlu vs. State of Andhra Pradesh, AIR 2011 CS 1199; (2011) 4 SCC 363 . 12. Similarly in case G. Ramagowda vs. Special Land Acquisition Officer, AIR 1988 SC 897 , the Hon'ble Apex Court observed that the expression 'sufficient cause' appearing Section 5 of the Act must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. 13. In another case State (NCT of Delhi) vs. Ahmed Jaan, 2008 (10) JT 179 ; 2008 (11) SCALE 455 while interpreting the expression 'sufficient cause', the Hon'ble Apex Court has observed that the terms sufficient cause should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. Moreover, a party causing delay is not going to be benefited and by taking assistance from the observation made in the aforesaid judgments, this Court arrives at a conclusion that an appeal should have been decided on merits instead of dismissing the same on technical ground of delay in preferring the same. 14. As an up shot of the aforesaid discussion, instant revision petition is allowed whereby the order dated 01.08.2017 (P-4) passed by the Lower Appellate Court is set aside and consequently, an application for condonation of delay preferred before the lower appellae court stands allowed. The file be returned to the concerned court for deciding the appeal on merits. 15. Parties through their counsel are directed to appear before the lower appellate court on 25.09.2018.