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2019 DIGILAW 1708 (HP)

Rupan Devi v. Dalip Singh

2019-11-13

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, filed under Article 227 of the Constitution of India, petitioner has challenged order dated 13.11.2018, passed by the Court of learned District Judge, Hamirpur, H.P. in Civil Miscellaneous Application No.260 of 2016, titled as Smt. Rupan Devi Versus Dalip Singh and another, vide which the application filed under Order 41, Rule 3-A of the Code of Civil Procedure, for condonation of delay in filing the appeal by the present petitioner stood dismissed by the learned First Appellate Court. 2. Brief facts necessary for the adjudication of the present petition are that a suit for declaration and permanent prohibitory injunction filed by the petitioner herein against the respondents herein, in the Court of learned Civil Judge (Junior Division), Court No.II, Hamirpur, H.P. Said Civil Suit i.e. Civil Suit No.587 of 2009, titled as Smt. Rupan Devi Versus Dalip Singh and another was dismissed by the learned trial Court vide judgment and decree dated 13.10.2015. 3. An appeal was filed before the First Appellate Court against the said judgment and decree on 20.09.2016 by the present petitioner along with an application under Order 41, Rule 3-A of the Code of Civil Procedure, praying for condonation of delay in filing the appeal, as the appeal was barred by 342 days. 4. The application so filed by the petitioner before the learned Appellate Court, praying for condonation of delay in filing the appeal, stands rejected vide impugned order. Learned Appellate Court dismissed the application by inter alia holding that the applicant therein had not been able to make out sufficient cause for not filing the appeal within the prescribed period, as the applicant had acted in a negligent manner and there was no bonafide on her part. Learned Appellate Court held that the suit stood decided on 30.10.2015. Yet, the applicant did not bother to consult her counsel till 10.08.2016 and there was no explanation for the delay of about 10 months. It further held that even after the copy of the judgment passed by the learned trial Court was obtained on 12.08.2016, the appeal was still not preferred upto 20.09.2016, which also demonstrated laxity on the part of the applicant because her alleged defence that she remained ill in this period was not substantiated by placing any evidence on record. It further held that even after the copy of the judgment passed by the learned trial Court was obtained on 12.08.2016, the appeal was still not preferred upto 20.09.2016, which also demonstrated laxity on the part of the applicant because her alleged defence that she remained ill in this period was not substantiated by placing any evidence on record. On these basis, learned Appellate Court dismissed the application by holding that in the absence of cogent and convincing evidence, the applicant had failed to explain that the delay in filing the appeal had occurred on account of sufficient and reasonable cause. 5. Feeling aggrieved, petitioner has filed the present petition. 6. I have heard learned counsel for the parties and have also gone through the order passed by the learned Appellate Court as well as other documents appended with the petition. 7. It is settled law that the procedure is the handmaiden of justice and the intent of procedural law is to further the cause of justice and not to hamper the same. However, it is also settled law that when there is limitation prescribed to do a particular act and the party concerned fails to do the act within the period of limitation, then delay is not to be condoned in a mechanical manner because after the expiry of limitation, valuable right accrues upon the other side which cannot be taken away by the Court in a routine manner unless it is satisfied that delay was bonafide and not intentional. 8. Coming to the facts of the present case, it is not in dispute that there was an inordinate delay in filing the appeal by the present petitioner before the First Appellate Court. In these circumstances, the Court expected the applicant therein to at least come-forth with clean hands, rather than to cooking up a story to justify the delay. 9. The reason which stood mentioned by the applicant as to why the appeal was not filed within the period of limitation or within some reasonable time thereafter, was that she was never intimated by her counsel that the suit stood decided. 10. 9. The reason which stood mentioned by the applicant as to why the appeal was not filed within the period of limitation or within some reasonable time thereafter, was that she was never intimated by her counsel that the suit stood decided. 10. During the course of evidence which was led by the respective parties before the learned Appellate Court, it has come on record that the applicant used to be present in the Court in each and every proceeding and even as on the date when the suit was finally heard by the learned trial Court, she was present in the Court. This demonstrates that the plea which was taken by the applicant to justify the delay was not only an incorrect plea but was also a false plea. She did not approach the Court with clean hands. As she was regularly pursuing the suit, there appears to be no merit in her plea that she was not informed about the pronouncement of judgment in the suit by her counsel. 11. As I have already mentioned above, procedure is not to be used to throttle the cause of justice, however, the power which stands conferred upon the Courts to condone the delay is not to be exercised in favour of such unscrupulous litigants who dare to approach the Court with unclean hands. 12. Therefore, this Court does not finds any infirmity with the order which has been passed by the learned Appellate Court, vide which it has dismissed the application filed by the present petitioner for condonation of delay in filing the appeal. 13. In view of the above observations, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, stand dismissed. Interim order, if any, stands vacated.