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2019 DIGILAW 383 (HP)

Housing And Urban Development Corporation Limited v. Pardeep Kumar

2019-04-08

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner-Corporation has challenged order dated 01.08.2016, passed by the Court of learned Additional District Judge-I, Shimla, H.P. in CMA No. 141-S/6 of 2013, vide which, an application filed under Section 5 of the Limitation Act by the petitioner for condonation of delay in filing the appeal was dismissed by the learned Court on the ground that no sufficient reason was there to condone the delay in filing the appeal. 2. Brief facts necessary for the adjudication of the petition are as under: Petitioner before this Court filed a suit for recovery of Rs.1,57,872/- against the respondents, in which, a preliminary decree was passed by the Court of learned Civil Judge (Junior Division) Jubbal, Camp at Chopal on 23.04.2007 in the following terms: "Civil Suit for recovery of Rs.1,57,872/- This suit coming today i.e. 23.04.2007 for final disposal before me (Abhay Mandiyal) Civil Judge (Jr. Divn.), Jubbal, Camp at Chopal, District Shimla, H.P. in the presence of Shri I.N. Mehta, Advocate, counsel for the plaintiff and Smt. Seema, Advocate, counsel for the defendant No. 2 and Defendant No. 1 already proceeded against exparte. It is ordered that the suit of the plaintiff is hereby decreed for sum of Rs.1,57,872/- against the defendants with cost throughout." 3. It appears that the petitioner was aggrieved by the fact that pendente lite and future interest on the principal amount was not decreed in its favour by the Court. However, rather than challenging the judgment and decree to this effect, petitioner filed an application under Section 152 of the Code of Civil Procedure to the effect that the decree was liable to be corrected as pendente lite and future interest, which was prayed for in the suit, was not awarded due to inadvertence and over sight. This application was dismissed by the learned Court below on 21.02.2013 by holding that if interest had not been granted by the Court, then necessary inference emerging in view of Order 34 Rule 3(2) of the Code of Civil Procedure was that the said prayer did not find favour with the Court and was declined. Learned Court also held that it could not amend the decree by invoking the provisions of Section 152 of the Code. 4. Learned Court also held that it could not amend the decree by invoking the provisions of Section 152 of the Code. 4. In the meanwhile, an application was filed by the petitioner under Order 34 Rule 3 (2) of the Code of Civil Procedure, which was disposed of by the learned Court below on 24.03.2012 by ordering that preliminary decree shall be deemed to be a final decree. 5. Thereafter, petitioner filed an appeal against the judgment and decree passed by the learned Trial Court, aggrieved by the factum of non-grant of interest alongwith an application for condonation of delay. As the appeal was filed beyond the period of limitation, this application was rejected by the learned Appellate Court by way of impugned order. 6. Learned Appellate Court held that admittedly the preliminary decree was passed on 23.04.2007 and made absolute by passing a final decree on 24.03.2012. It further held that from the averments made in the application for condonation of delay, it could not be made out that applicant had demonstrated ''sufficient cause'' for condonation of delay. It held that the Court could not lose sight of the fact that by not filing an appeal within the stipulated period, a valuable right had accrued upon the other party, which could not lightly be defeated by condoning delay in a routine like manner. It further held that though a hyper technical view in the matter could not be taken so as to reject the application for condonation of delay when stakes are high, but then the Court has to strike a balance between the resultant effect of the order, which is likely to be passed on such an application. It also held that in the case in hand, delay in filing the appeal was on account of sheer negligence and in action on the part of the applicant and as sufficient reason for condonation of delay could not be pointed out by the applicant, therefore, the application was devoid of any merit. 7. Feeling aggrieved, the petitioner has filed the present petition. 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record appended with the petition. 9. It is a matter of record that the preliminary decree was passed in favour of the petitioner on 23.04.2007. 7. Feeling aggrieved, the petitioner has filed the present petition. 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record appended with the petition. 9. It is a matter of record that the preliminary decree was passed in favour of the petitioner on 23.04.2007. It is further a matter of record that in the preliminary decree so passed, interest on the amount decreed in favour of the petitioner was not granted in its favour. It is also a matter of record that preliminary decree so passed by the learned Court below whereby interest was denied to the petitioner, was not challenged within the period of limitation. Instead petitioner filed an application under Section 152 of the Code of Civil Procedure for correction of the decree, which was rightly dismissed by the learned Court below by holding that provisions of Section 152 of the Code of Civil Procedure could not be invoked for incorporating in a decree the award of pendente lite or future interest, as in the absence of same being not awarded, presumption was that it stood denied by the learned Court below in terms of Order 34 Rule 3 (2) of the Code of Civil Procedure. 10. Record also demonstrates that on an application filed by the petitioner under Order 34 Rule 3(2), the preliminary decree was made final by the learned Court below on 24.03.2012. It is relevant to refer to the provisions of Order 34 Rule 3(2), which provides that where payment in accordance with Sub-Rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property. 11. During the course of arguments, learned counsel for the petitioner was given an opportunity to explain as to why there was such an inordinate delay in filing the appeal, to which, he could not provide any satisfactory answer. He also could not substantiate that in the facts of this case, limitation was not to start from the date of preliminary decree, but from the passing of final decree. 12. He also could not substantiate that in the facts of this case, limitation was not to start from the date of preliminary decree, but from the passing of final decree. 12. In my considered view, limitation in the present case for the purpose of filing appeal against the judgment and decree passed by the learned Court below started running from the date of passing of preliminary decree and not from the date the final decree was passed. In fact, this aspect of the matter has not been appreciated by the learned Appellate Court also. Be that as it may, fact of the matter remains that the preliminary decree whereby impliedly interest was refused on the principal sum to the plaintiff, was passed on 23.04.2007 and the appeal against the non-grant of interest was filed by the petitioner somewhere in the year 2013. Therefore, the delay is not of few months or year, but it is almost six years. The petitioner is incorrect in stating that limitation shall start from the date when the final decree was passed, because passing of final decree in terms of Order 34 of the Code of Civil Procedure had nothing to do with the grant or non-grant of interest on the principal amount decreed in favour of the petitioner and as the petitioner was aggrieved by the non-grant of pendente lite and future interest, it ought to have challenged the preliminary decree itself within the period of limitation. Incidentally, even from the date of passing of final decree, the appeal was not filed within limitation. Reason mentioned in application for condonation of delay is that delay occurred due to workload in the office. To say the least, this by no stretch can be treated as a sufficient cause. That being the case, as there actually was an inordinate delay in filing the appeal, no fault can be attributed to order passed by the learned Court below, whereby an application filed under Section 5 of Limitation Act for condonation of delay in filing the appeal has been dismissed. 13. Accordingly, as there is no merit in this petition, the same is dismissed. Miscellaneous applications, if any, also stand disposed of.