CIVIL APPEAL 405 of 1997 on 1 January 1994

1. Smt. Amro Devi, wife of Shri Karam Chand, village Nauhara, Tappa Bamsan, Tehsil Bhoranj, District Hamirpur HP Tappa Bamsan, Tehsil Bhoranj, District Hamirpur HP

2. Smt. Beer Devi, wife of Shri Garja Ram, village Ladrour Mauja Mehlta, Tehsil Bhoranj, District Hamirpur HP Mehlta, Tehsil Bhoranj, District Hamirpur HP

Both through their General Power of Attorney holder Shri Karam Chand, son of Shri Ganga Ram, village Nauhara, P.O. Dimmi via Kanjan, Tehsil Bhoranj, District Hamirpur HP-177025. Chand, son of Shri Ganga Ram, village Nauhara, P.O. Dimmi via Kanjan, Tehsil Bhoranj, District Hamirpur HP-177025.

…..Petitioners

Versus

1. Smt. Shakuntla Devi wife of Shri Bidhi Chand, village Kot Tappa Bajuri, Tehsil and District Hamirpur (HP)-177011. Bajuri, Tehsil and District Hamirpur (HP)-177011.

2. Smt. Hakmi Devi wife of Shri Shyam Lal, village Galot, PO Nalti, Tehsil and District Hamirpur HP Tehsil and District Hamirpur HP

…..Respondents

Petition under Article 227 of the Constitution of India.

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Coram

The Hon’ble Mr. Justice Dev Darshan Sud, J.

Whether approved for reporting?[1] Yes

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For the Petitioners:

Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate.

For the Respondents:

Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.

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Dev Darshan Sud, J (oral)

This petition has been instituted by the petitioners who were the respondents before the learned Court below.

1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes

2. The petitioners are the plaintiffs who instituted civil suit No. 405 of 1997, praying for a decree of declaration that the plaintiffs-petitioners and respondent No.2 were the owners in possession of the suit land and the Will dated 1.1.1994 executed by Smt. Sukhan Devi, widow of Shri Rora Ram was illegal and did not bind the interest of the plaintiffs. Consequential relief of permanent prohibitory injunction was also claimed praying that the defendants be restrained from changing the nature of the land, removing the trees etc. from there. In case of any construction having been raised, the same be demolished.

3. The suit was dismissed by the learned trial Court on 1.3.2007. Appeal preferred was also dismissed by the learned District Judge on 1.1.2009 being not pressed. After the dismissal of the appeal, respondent No. 1 herein Shakuntla Devi preferred an appeal against the judgment and decree of the learned trial Court, which had now been attained finality. This appeal was barred by limitation and application under Order 41 Rule 3-A of the Code of Civil Procedure read with Section 5 of the Limitation Act was preferred by the respondent. This was resisted by the petitioners herein, who pleaded that the appeal was not entertainable as the ground as set out in the application for condonation of delay that the applicant-appellant before the learned Appellate Court was not aware about the decision of the learned lower Court was not established, incorrect and test the credibility of a common man, applicant and her husband Shri Bidhi Chand, who was also her General Power of Attorney, was aware about the case. It was pleaded that she was duly served in appeal on 30.4.2007, whereafter she appeared through counsel in Court on 12.6.2007. The case was taken up for final arguments on 24.9.2007, 26.12.2007, 21.5.2008, 20.8.208, 3.11.2008, 29.12.2008 and the appeal was fixed for final orders on 1.1.2009. It was decided on that date.

4. The application was taken up for trial on one settled issue as to whether there was sufficient ground for condoning delay. The learned Court below on the evidence on record holds in favour of the respondents by noting that ground urged against the maintainability of the application was that husband of the applicant was a retired Kanungo (revenue officer) and he should have been aware about the decision. The Court after relying upon the decision in Harjinder Kaur and others vs. Sunita and others 2002(3) Shim.L.C.1allowed the application. It merely reproduced the head-note without looking into the entire case.

5. The principles governing condonation of delay are now well settled. Before adverting to precedent, I note that the ground as advanced by the applicant is not bonafide. In the appeal preferred against the judgment by the petitioners herein, the respondent was represented by a lawyer and the explanation that the judgment was not in the knowledge of the respondent, her husband who was representing her as her attorney cannot be accepted as it taxes the imagination of this Court considering that he was pursuing both the original and appellate proceedings with vigour. The ground set out can hardly be considered as bonafide even if the factual submission made is accepted. It is at best a lame duck excuse. In Balwant Singh (dead) vs. Jagdish Singh and others (2010)8 SCC 685the Supreme Court after considering the entire precedent on the subject holds:

“38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the abovestated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications.”

(at p. 700)

In the light of this settled principle, I cannot accept the reason advanced by the respondent herein for accepting the condonation of delay. I need not repeat that even the learned Court below is completely remiss in ignoring these principles and acting merely on conjectures.

6. The principle is that not the length of delay, but the nature of explanation has to be considered on the facts. What I find in the present case is that the quality of explanation is extremely poor. I also find that the learned Court below has acted in a mechanical manner by simply ignoring the law and rendering the decision on its own conception as to what the law should and ought to be applied. There is, thus, no merit in this appeal, which is accordingly dismissed. The judgment of the learned Court below is quashed and set aside.

December 21, 2011 ms

(Dev Darshan Sud), Judge