Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 207 (HP)

Dev Raj v. Bhupender Singh

2020-03-05

AJAY MOHAN GOEL

body2020
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “It is, therefore, prayed that the present petition may very kindly be allowed and order dated 01.04.2019, passed by the learned District Judge, Kinnaur at Rampur Bushahr in case titled CIS No. 180/2018, titled Bhupender Singh Versus Dev Raj and other be quashed and set aside and the application moved by respondent No. 1 for condonation of delay be dismissed and the records of the case be also summoned from the Court below or such other order as this Hon?ble Court deems fit and proper be also passed on this petition.” 2. I have heard learned Senior Counsel for the petitioner and learned counsel for the respondents. 3. By way of impugned order, learned Appellate Court has allowed the application filed under Section 5 of the Indian Limitation Act by respondent No. 1 Shri Bhupender Singh, which was filed by him for condonation of delay in filing the first appeal against the judgment and decree dated 23.09.2017, passed by the Court of learned Senior Civil Judge, Kinnaur at Reckong Peo in Civil Suit No. 32-1 of 2011. 4. As is borne out from the application which was filed under Section 5 of the Limitation Act by respondent No. 1 herein before the learned First Appellate Court, the delay in filing the appeal is of approximately 100 days. Further, the application was filed by the party before the first Appellate Court after legal aid was provided to him on his request. 5. Though there is merit in the contention of learned Senior Counsel for the petitioner that the reasons spelled out in the application for condonation of delay do not inspire confidence and further the rational which has been applied by the learned First Appellate Court in allowing the application is also not too convincing, as is borne out from para- 10 thereof, however, in my considered view, as learned First Appellate Court, in exercise of its discretion, has allowed the application for condonation of delay, it will be in the interest of justice in case the order so passed by the learned First Appellate Court is not disturbed with and the appeal now pending adjudication before the learned District Judge, Kinnaur, is permitted to be heard on merit. Ordered accordingly. Ordered accordingly. Order dated 01.04.2019, passed by the learned First Appellate Court condoning the delay in filing the appeal is not disturbed. 6. However, it is observed that the application for condonation of delay should not be disposed of in a mechanical manner and reasons which are mentioned in the order either allowing or dismissing the application, should be borne out from the record. Learned First Appellate Court while allowing the application for condonation of delay, in para-10 of the impugned order, held that in view of the fact that after the decision of the Civil Suit on 23.09.2017, there were Dussehra holidays in the Court and this was followed by Winter Vacations in the months of January and February and thereafter, the applicant applied for legal aid, said reasons were sufficient for condonation of delay, coupled with the fact that the Counsel, who had filed the appeal, earlier refused to prosecute the case on behalf of the said party at Reckong Peo on the ground that he could not do so because of the distance between Rampur Bushahr and Reckong Peo. 7. In my considered view, the factum of the Court being closed for Dussehra holidays and Winter Vacations does not ipso facto give right to a party for condonation of delay in filing the appeal. Statute governs the limitation within which an appeal has to be filed by a party. If the appeal is not filed within the period of limitation, then as per law of the land, each and every day?s delay has to be explained. Though in the interest of justice, Courts do not insist that each and every day?s delay should be explained by a party, however, least that the Courts expect is that the party should approach the Court with clean hands and give some cogent explanation as to why it could not file the appeal either within the period of limitation or within some reasonable time thereafter. This was missing in the application filed for condonation of delay before the First Appellate Court. The reasons given in the application were vague, which could not be termed to be cogent enough to justify the delay in filing the appeal. This was missing in the application filed for condonation of delay before the First Appellate Court. The reasons given in the application were vague, which could not be termed to be cogent enough to justify the delay in filing the appeal. This extremely important aspect of the matter has not been taken care of by the learned First Appellate Court while passing the impugned order, despite the fact that the application was resisted by the non-applicants before it. There is no discussion on the grounds raised in the application for condonation of delay vis-a-vis the objections raised to the same in the reply filed by the non-applicants. What prevented the appellant/respondent No. 1 herein from filing the appeal after Dussehra holidays were over and before closure of the Court for winter vacations, is not mentioned in the application. This aspect of the matter has not been dealt with by the learned First Appellate Court in its order while condoning the delay in filing the appeal. Similarly, there is no adjudication on the objections raised to the application by the non-applicants. This Court understands that whether or not delay has to be condoned, is the discretion of the Court, however, this discretion cannot be exercised without justifying as to why the plea of the applicant was being accepted and that of the non-applicants was being negated. This is completely missing in the order which has been passed by the learned First Appellate Court. It is in this background that this Court is making the observation that the applications for condonation of delay should be decided by the learned Courts below by assigning reasons which are borne out from the pleadings as to why a particular view has been taken by it. However, as already held hereinabove, in the peculiar facts of this case, the order under challenge is not being disturbed with and with these observations, this petition is closed.