HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 49 of 2010 Shri Mangal Ram. …Applicant Versus Smt. Samar Jahan. …Respondent. Mr. S.K. Jain and Mr. B.S. Thind, Advocates for the applicant. Mr. Siddhartha Sah, Advocate for the respondent. Dated: November 1, 2011: Hon’ble V.K. Bist, J. CLMA No. 9135/10 (Delay Condonation Application) & Objection in delay condonation application Delay condonation application (CLMA No. 9135/10) has been filed by the applicant seeking condonation of 2088 days’ delay in filing the Second Appeal. Earlier on 26.05.2011, this application was allowed on the basis of statement given by the learned counsel for the respondent that respondent has no objection, incase the delay condonation application is allowed, provided the applicant/appellant undertakes to vacate the premises in question within the stipulated period prescribed by this Court. At that time, learned counsel for the appellant agreed for the same and prayed that appellant may be permitted to retain the accommodation in question for a further period of six months. On the basis of statement given by learned counsel for the parties, the delay condonation application was allowed without being heard on merit. Thereafter, the learned counsel appearing on behalf of the applicant/appellant sought permission to withdraw the Second Appeal with the prayer that appellant may be 2 permitted to retain the accommodation in question for a further period of six months. At that time, learned counsel for the respondent also pointed out that earlier also, on the request of the appellant/applicant, three months time was given by the Court below to the applicant/appellant for the same purpose but subsequently he filed appeal. However, on the basis of the statement made by the counsel for the appellant/applicant for vacating the accommodation in question within a period of six months, such permission was granted and the Second Appeal was dismissed as withdrawn. Thereafter, after a long period i.e. on 18.07.2011, a recall application alongwith a delay condonation application was moved by the appellant/ applicant on the ground that he had never given any instructions to his earlier counsel to withdraw the Second Appeal, rather he was interested in getting the case decided on merit and earlier counsel appearing for the appellant/applicant, without there being any instructions from the appellant/applicant, withdrew the Second Appeal causing him irreparable loss and injury. In view of the statement made in the application and in the interest of justice, this Court recalled the order dated 26.05.2011. Thus, this delay condonation application revived and remained undecided till date. 2. Heard learned counsel for the parties on the delay condonation application as well as on the objection filed against the delay condonation application. 3. From perusal of record it reveals that initially the respondent filed Civil Suit No. 230 of 1991 against the appellant/applicant seeking specific performance of a contract showing that father of the appellant/applicant, namely, Ram Prasad had executed an agreement in her 3 favour on 04.01.1990 in respect of property bearing no. 9/7 Kishan Nagar, Near Radha Krishna Mandir, Dehradun. The said suit was decreed on 15.12.2001. Against the said decree, the appellant/applicant filed Civil Appeal no. 10 of 2002, which was also dismissed on 06.11.2004. He did not challenge the judgments of the Courts below in the High Court within time, but on the advice of his counsel, he filed an injunction suit on 03.12.2004 bearing O.S. No. 337 of 2004 in which an interim order was granted restraining the defendants from interfering in the peaceful possession of the appellant/applicant and also from evicting him from said property. The defendants filed their written statement and ultimately the O.S. No. 337/2004 was decreed on 24.05.2005. The appellant/applicant was assured by his advocate that he need not to worry as proper remedy has been availed of. It is the contention of the appellant/applicant that the Civil Appeal no. 10 of 2002 was dismissed on 06.11.2004 and on 24.03.2009 the decree was put into execution. He contended that there is no reason for not filing execution case for seven years. It is the contention of the appellant/applicant that proceedings of execution case came in his knowledge, in the month of March, 2010, when he was asked by the Civil Court Amin, Dehradun to vacate the property in question for handing over its possession to the respondent. Thereafter, the appellant/ applicant immediately contacted his advocate and found that the respondent had initiated execution proceedings bearing Execution No. 6 of 2009 for execution of decree dated 15.12.2001 passed in O.S. No. 230 of 1991 and on 24.10.2009, the sale deed was executed. Learned counsel for the appellant/applicant contended that the respondent had 4 not given correct address of the applicant in the said execution application and as such, the summons/notice of said execution case never reached the applicant. Learned counsel for the appellant/applicant contended that applicant’s advocate then got prepared objection in order to file the same in the execution proceedings, praying for quashing the possession warrant issued against him. It is also contended that the appellant/applicant without reading the material, put signature on the objection and he again fell prey to the fancies of his advocate, who had changed the prayer in the said objections and instead of getting the writ of possession quashed, prayed for granting time to vacate the property in question. At that time the appellant/ applicant had no clue that he is being befooled. The applicant, on the advice of an advocate, again filed Civil Revision no. 71 of 2010 against the order of handing over of possession of the property in suit. The same is pending in the Court of ADJ-III, Dehradun. It is submitted that during the pendency of said revision, on the advice of advocate, the applicant preferred instant Second Appeal. It is contended that the delay in filing instant Second Appeal is not attributable to the appellant/applicant for he has no legal awareness and his knowledge was limited merely to engage an advocate. It is the contention of the appellant/applicant that he was not sitting idle for six years, rather on the advice of his advocate he was taking recourse of law in wrong forum. Learned counsel for the appellant/applicant contended that since after the judgment passed by the Lower Appellate Court in the year 2004, the appellant/applicant was advised to file Civil Suit for injunction and that suit was allowed, the applicant pursued remedy as advised to him by his Advocate. Due to such wrong advice, he did not 5 file Second Appeal before this Court in the year 2004 itself, therefore, he is entitled for the benefit under Section 14 of Limitation Act which provides that in case the litigant avails wrong remedy against any judgment, the intervening time consumed in availing proper remedy will be given to such litigant. Learned counsel for the appellant/applicant placed reliance on the judgment of this High Court rendered in ‘Laxmi and others vs. Beg Ram’ reported in 2011 (2) Uttarakhand Decisions-111, Balbir Singh vs. Commissioner Garhwal Mandal, Dehradun and others passed by this Court on 9th January, 2009 in Writ Petition no. 1325 of 2005 (M/S), Naresh Sharma and others vs. Ramesh chand and others, reported in AIR 2000 Himachal Pradesh-6 and Shyamal Kanti Danda vs. Chunilal Choudhary, reported in AIR 1984 Supreme Court-1732. 4. Refuting the contentions made by the applicant, Mr. Siddhartha Sah, learned counsel for the respondent submitted that the respondent is the daughter of Bhure Khan, whereas the appellant/applicant has wrongly described her as the wife of Bhure Khan. He submitted that before the Executing Court, the appellant/ applicant moved an application praying for three months time to vacate the property in question and the Executing Court granted time upto 31.05.2010 to vacate the said property. The appellant/applicant also gave an undertaking in writing by way of an affidavit to vacate the property in question (annexure no.1 to the objection), however instead of vacating the premise, the appellant/ applicant filed Civil Revision no. 71 of 2010 where he contended that he was misled by his advocate, but the revision was dismissed. Thereafter, the Executing Court 6 issued writ of possession vide order dated 11.01.2011 against which the appellant/applicant filed another Revision No. 12 of 2011 taking the same shelter of being misled by his advocate. He submitted that it is of no consequence or relevance in issue whether or not the said property was already bequeathed to the appellant/ applicant by his father on 06.11.1989. He contended that the respondent neither ever had nor has any intention of evicting the appellant/applicant otherwise than with due process of law, which she has been diligently pursing for the last 20 years. He submitted that Execution Case No. 6 of 2009 was in the knowledge of appellant/applicant from the beginning. He denied that the respondent has not given correct address or that the summons/notice of said execution never reached the applicant. He submitted that in the objection before the Execution Court, the appellant/ applicant himself had prayed for time to vacate the property in question. He further contended that the Executing Court, vide order dated 11.01.2011, again directed writ of possession to be issued, against which the appellant/applicant once again filed Revision No. 12 of 2011 and by misleading the Revisional Court, managed to obtain a stay order to further delay execution proceedings. He submitted that the applicant is not entitled for the benefit of Section 14 of Limitation Act, as the applicant is abusing the process of law. He drew attention of the Court towards paragraph-12 of the objection dated 22.03.2010 filed by the appellant/applicant before the Executing Court and argued that this application is duly supported with an affidavit in which the appellant/applicant has prayed three months time for vacating the property in question. In support of his argument learned counsel for the respondent relied on the judgment of Hon’ble Apex 7 Court rendered in Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation and another, reported in 2010 (2) Supreme-115 and Salil Dutta vs. T. M. and M.C. Private Ltd. reported in AIR (SCW) 1178. 5. I have considered the rival contentions advanced by the learned counsel for the parties and have gone through the law cited by them. This Court is of the view that the appellant/applicant has not availed the remedy available to him against the judgment and order passed in the appeal in the year 2004, rather he intentionally filed civil suit for injunction and he stood idle for a considerable period of 6 years. This Court is also of the view that the act of the appellant/ applicant is nothing but an abuse of process of law, as he himself filed an affidavit before the Execution Court for vacating the premises in question. Later on, he levelled allegation against the Advocate. In the High Court also, on his instructions, his counsel got the appeal dismissed by asking six months time for vacating the accommodation in question. But subsequently, he filed order recall application by stating that he had never instructed his counsel for the same, and thus he got the order recalled. The applicant cannot be granted benefit under Section 14 of Limitation Act because it is not a case where appellant/applicant has availed wrong remedy against the judgment and order dated 06.11.2004. In fact, the appellant/applicant did not avail any remedy against the said order but he kept quiet for about 6 years and then filed present second appeal. Suit No. 337/2004 was for different purpose. Propounding absolute honour to the ruling cited by the applicant in Balbir Singh vs. 8 Commissioner Garhwal Mandal, Dehradun and others passed by this Court on 9th January, 2009 in Writ Petition no. 1325 of 2005 (M/S), Naresh Sharma and others vs. Ramesh chand and others, reported in AIR 2000 Himachal Pradesh-6 and Shyamal Kanti Danda vs. Chunilal Choudhary, reported in AIR 1984 Supreme Court-1732, I am of the view that the ratio of law cited by learned counsel for the appellant/applicant is not applicable in the present case, rather I am fortified with the view taken by Hon’ble Apex Court in Oriental Aroma Chemical Industries Ltd. (supra) in which Hon’ble the Apex Court has held that “The law of limitation is founded on public policy. The legislature does not prescribe limitation which the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury.” In the light of the above, the applicant had not offered any plausible or tangible explanation for the long delay of 2088 days delay in filing the Second Appeal. 6. After considering the submissions advanced by the learned counsel for the parties, this Court is not inclined to accept the contentions raised by the learned counsel for the appellant/applicant. The appellant/ applicant has not come up with the clean hand before the Court. Accordingly, the application for condonation of delay in filing the Second Appeal is dismissed. Consequently, the Second Appeal is also dismissed having been barred by limitation. 9 7. All other pending applications (CLMA No. 9135/10 Delay Condonation Application) as well as (CLMA No. 10064/10 Amendment Application) stand disposed of. (V.K. Bist, J.) 01.11.2011 NCM: