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2022 DIGILAW 468 (JK)

Amit Angral v. Mona Sharma

2022-09-02

PUNEET GUPTA

body2022
JUDGMENT : 1. The appeal stands filed by the applicant against the Judgment and Decree dated 28.05.2019 passed by the court of learned 2nd Additional District Judge, Jammu. The appeal is accompanied by the application seeking condonation of delay in filing the appeal. It is submitted in the application that the applicant came to know of the execution petition having been filed before the court of learned 2nd Additional District Judge, Jammu only in the month of December, 2019 and thereafter he got the copy of judgment and decree on 21.12.2019. The applicant never received summons in the suit filed by the respondent No.1 and, therefore, was not aware of the suit and the proceedings which took place in the said suit. The application also states of filing of review against the judgment and decree on 28.01.2020 and the applicant came to know of the dismissal of the review dated 22.06.2020 later on due to Sr. No. 47 the COVID restrictions. He did not receive the copy of the review order despite his efforts due to restrictions of entry in the court because of COVID-19 pandemic. The applicant received copy of the order on 04.12.2020 though applied for the same on 23.11.2020 and received the copy from the Advocate on 13.12.2020 and copy of another report dated 15.12.2020 on 16.12.2020. The delay of 492 days in filing the appeal covers the period of 203 days and is required to be excluded as the applicant got the knowledge of the decree on 21.12.2020 and from 23rd March to 23rd November, 2020 the delay is on account of COVID-19 pandemic and restrictions and 12 days from 23.11.2020 to 04.12.2020 on account of receiving of the copy of the impugned judgment for filing of the appeal before this Court. Infact there is delay of only 31 days in which the applicant had also filed the review against the judgment and decree. The delay in filing the appeal is neither intentional nor deliberate but due to the circumstance beyond the control of the applicant. 2. The objections to the application stand filed by the respondent No.1 wherein it is submitted that the applicant along with the respondent No.2 had appeared before the trial court on 27.03.2018 and the case was posted for filing of the written statement for 19.04.2018. 2. The objections to the application stand filed by the respondent No.1 wherein it is submitted that the applicant along with the respondent No.2 had appeared before the trial court on 27.03.2018 and the case was posted for filing of the written statement for 19.04.2018. The defendants in the suit were proceeded ex-parte on 19.01.2019 but the same was set aside and the case was heard by the court. The applicant had knowledge of the pendency of the suit and also filed review petition against the judgment and decree also on the ground that he did not appear before the court. The review petition was dismissed vide order dated 22.06.2020. As the review was instituted during the lockdown period and the case was also argued by the counsel, therefore, there is no question of having no knowledge about the passing of the order on review by the court below. No sufficient cause is shown by the applicant for not filing the appeal within the statutory period. The applicant and the co-defendant are close relations and the case was being pursued by the respondent No.2 before the trial court of which the applicant had knowledge. Mr. Umesh Sharma had appeared before the trial court as counsel for the applicant and the respondent No.2 herein. It is in the light of the aforesaid submissions made in the application that the respondent No.1 seeks dismissal of the application in hand. 3. The learned counsels for the applicant and the respondent No.1 agreed that the application can be heard in the absence of the respondent No.2 herein as the applicant is aggrieved of the judgment and decree passed by the trial court. 4. The original suit record and the scanned record of the review and the execution petition are before the court. 5. The learned counsel appearing for the applicant has submitted that the applicant was not in knowledge of the suit proceedings as he had not appeared before the trial court. Mr. Umesh Sharma was representing the other defendant in the suit and not the applicant and the same is evident from the report obtained by him from the trial court in this regard. The time spent by the applicant in the review petition is also required to be excluded while computing the period of limitation. Mr. Umesh Sharma was representing the other defendant in the suit and not the applicant and the same is evident from the report obtained by him from the trial court in this regard. The time spent by the applicant in the review petition is also required to be excluded while computing the period of limitation. It is also argued by the applicant that the decree is otherwise is required to be set aside keeping in view the facts of the case. 6. Learned counsel appearing for respondent No.1, on the other hand, has controverted the argument of the learned counsel for the applicant as he has submitted that the applicant was in the knowledge of the suit proceedings as he had appeared before the trial court but consciously absented himself from the proceedings. The applicant had knowledge of the suit and the outcome of the same as he had appeared even in the execution proceedings initiated by the respondent after passing of the decree in question but did not prefer to file the appeal against the judgment and decree passed against him. 7. The presence of the applicant-Amit Angral before the trial court on the initiation of the suit cannot be denied by the applicant as the same is writ large from the order sheet in the suit proceedings. The suit was filed on 03.03.2018 and the defendants Som Raj and Amit Angral appeared in person before the trial court in the suit proceedings on 27.03.2018. The signatures of both the defendants are visible on the margin of the file. The defendants were provided copy of the plaint and were directed to file written statement by the next date fixed in the case. The basic contention of the applicant that he had no knowledge of the filing of the suit as he did not receive the summons in the case gets knocked out from the order dated 27.03.2018 passed by the trial court. It is also pertinent to mention herein that the applicant has not otherwise raised a plea that the signatures on the margin of the order dated 27.03.2018 are not his signatures. It is also pertinent to mention herein that the applicant has not otherwise raised a plea that the signatures on the margin of the order dated 27.03.2018 are not his signatures. It appears that the applicant has taken the plea of not being in knowledge of the suit proceedings in a casual and routine manner without realizing that the order passed by the trial court will itself vividly depict the appearance of the applicant in the suit proceedings. The suit was decreed on 28.05.2019. The review petition was filed by the applicant herein against the judgment and decree before the court on 28.01.2020 and the review was disposed of vide order dated 22.06.2020 meaning thereby that the applicant had knowledge of passing of the decree before 28.01.2020 when the review petition was filed by the applicant herein against the judgment and decree passed by the trial court. It is also pertinent to mention herein that the respondent No. 1-decree holder had moved execution petition for execution of decree on 27.08.2019 and Mr. Sanjay Verma, Advocate had appeared on behalf of the applicant herein in the execution proceedings on 28.09.2019. The order sheet reflects the same and the vakalatnama of Mr. Sanjay Verma, Advocate is also on the file. The order dated 21.12.2019 again specifically mentions of appearance of Mr. Sanjay Verma, Advocate on behalf of judgment debtor No.2, that is, the applicant-Amit Angral. The applicant in the face of the aforesaid facts cannot plead that he came to know of the execution proceedings only in the month of December, 2019 and not in September, 2019 when Mr. Sanjay Verma, Advocate appeared for the applicant on the 28.09.2019 and the vakalatnama was also filed by the Advocate for the applicant-Amit Angral. The contention of the applicant that he neither appeared in the suit proceedings or came to know of the passing of the decree only in the month of December, 2019 gets falsified by the mere record of the suit proceedings and the execution proceedings filed by the respondent (plaintiff). 8. The contention of the applicant that he neither appeared in the suit proceedings or came to know of the passing of the decree only in the month of December, 2019 gets falsified by the mere record of the suit proceedings and the execution proceedings filed by the respondent (plaintiff). 8. The review petition filed by the applicant herein did not bear any positive result for the applicant and the same came to be dismissed by the court vide order dated 22.06.2020 though he vaguely pleads in the application in hand that he tried to get the copy of the order but failed to get the same due to COVID-19 pandemic till 13.12.2020. The applicant has not otherwise pleaded as to when he got the information of the dismissal of the review petition. The applicant has availed the remedy of filing of review against judgment and decree passed by the trial court and filed the appeal only after the review petition was dismissed by the court on the grounds mentioned therein. It is evident from the facts that follow from the record that even if the contention of the applicant is to be accepted that he was not aware of the passing of the decree by the trial court, the contention raised in the application that he came to know of the same only in December, 2019 is without any substance and requires rejection. As mentioned above, the execution proceedings vividly bring out that the applicant got the knowledge of the passing of the decree in any case by or on 28.09.2019 and not 21.12.2019 as contended by the learned counsel for the applicant. As worst scenario the limitation for filing the appeal against the judgment and decree can be counted from 28.09.2019 when the applicant can be said to have got the information of passing of the decree against him during execution proceedings. The period for filing the appeal as per the provisions of the Limitation Act is 90 days. Even taking into account the crucial date of 28.09.2019 as the date of knowledge of passing of the decree, the appellant did not choose to file the appeal against the decree within the period of limitation. Even the review petition was not filed within the limitation period from the said date of 28.09.2019. 9. Even taking into account the crucial date of 28.09.2019 as the date of knowledge of passing of the decree, the appellant did not choose to file the appeal against the decree within the period of limitation. Even the review petition was not filed within the limitation period from the said date of 28.09.2019. 9. The other contention raised by the learned counsel for the applicant during the course of argument that the time spent in pursuing the review against the judgment and decree is required to be excluded while computing the limitation for filing the present appeal against the decree passed by the trial court. The applicant cannot claim as a matter of right in the present case that he is entitled to exclusion of the period during which he pursued the review petition when the review petition is itself not filed within the limitation period. The applicant had statutory right to file the review petition against the judgment and decree passed against him and he availed the same. The applicant having opted for review against the judgment and decree and after having failed to obtain favourable order in review, the applicant chose to file the present appeal. The time spent in review proceedings cannot be excluded in the case in hand as the court finds no mention in the application that the applicant was pursuing the review petition under any wrong advice. In case the court is to accept the contention of the learned counsel for the applicant then there will be no end to the original proceedings. 10. The upshot of the discussion is that the applicant, one of the judgment debtors, had knowledge of the suit proceedings right from 27.03.2018 when he appeared in the suit proceedings and not from December, 2019 as pleaded by him. In any case, the knowledge of passing of the decree can be safely attributed to the applicant at least from 28.09.2019 when the applicant appeared in the execution proceedings through counsel and also filed vakalatnama on the said date of hearing in the execution proceedings. The other conclusion that can be drawn is that the time spent by the applicant in review proceedings cannot be excluded as far as the present case is concerned. The applicant had not even filed the review petition against the judgment and decree within the period of limitation. 11. The other conclusion that can be drawn is that the time spent by the applicant in review proceedings cannot be excluded as far as the present case is concerned. The applicant had not even filed the review petition against the judgment and decree within the period of limitation. 11. It cannot be disputed that the law of limitation is required to be applied with all rigor and the deviation from the same is not comprehended until the circumstances come to the rescue of the party for extending the limitation period in filing the relevant proceedings. Of course, the pedantic approach need not be applied but at the same time the sufficient cause has to be explained by the party seeking condonation of delay in filing the relevant proceedings. The law of limitation cannot be made causality in the garb of the argument that the condonation of delay will serve the ends of justice in a given case. 12. In 1997 (8) Supreme 332 , the Hon’ble Apex Court has held that law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. 13. The learned counsel for the applicant has argued that even if there is delay in filing the appeal the same may be condoned as it will be in the interest of justice. The decree passed by the trial court is not in consonance with the law. The court is not in agreement with the argument of the learned counsel for the applicant as in case the party to the suit or proceedings fails to avail the remedy available to him within the period of limitation without any sufficient cause being shown the invaluable right of finality of the order accrues in favour of the party who had obtained a favourable order in the suit or proceedings. 14. The court, in the facts and circumstances of the case, holds that the application seeking condonation of delay in filing the appeal is without merit and is, accordingly, dismissed. Consequently, the appeal filed against the judgment and decree also stands dismissed. 15. Original record received be sent back.