CR No. 5638 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 23015-CII of 2009 and CR No. 5638 of 2009 (O&M) Date of Decision: 25.9.2009 Santokh Singh ....Petitioner. Versus Bikker Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. S.P. Soi, Advocate for the petitioner. AJAY KUMAR MITTAL, J. C.M. No. 23015-CII of 2009 Allowed as prayed for. C.R. No. 5638 of 2009 The defendant-petitioner has approached this Court by way of instant revision petition under Article 227 of the Constitution of India challenging the orders dated 29.7.2009 (Annexures P-6 and P-7) whereby the application filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal as well as the appeal were dismissed by the lower appellate court. Order dated 4.10.2008 passed by the trial court dismissing the application filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgment and decree dated 16.3.2005 passed in civil suit No. 1127 of 2004 was CR No. 5638 of 2009 -2- dismissed, has also been assailed in the present petition. The present case is a glaring example of gross negligence on the part of the defendant to prosecute the case. The plaintiff- respondent filed a suit for possession which was decreed ex parte vide judgment and decree dated 16.3.2005. An application was filed by the defendant-petitioner for setting aside the same which was dismissed by the trial court vide order dated 4.10.2008. The defendant- petitioner challenged the aforesaid order before the lower appellate court. The appeal was not filed within the prescribed time and, therefore, an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal was moved. The lower appellate court on the basis of the pleadings of the parties allowed the defendant-petitioner to lead evidence to show that there was sufficient cause for not filing the appeal within limitation. The defendant-petitioner in spite of having been afforded opportunities on 20.4.2009, 8.5.2009 and 19.5.2009 for leading evidence, did not produce evidence and the case was adjourned to 29.5.2009 for evidence as last opportunity. Again the defendant-petitioner failed to produce evidence and the case was adjourned to 12.6.2009 for evidence subject to payment of Rs.500/- as costs. On the said date, neither the costs were paid nor the defendant- petitioner led any evidence, rather filed an application for adjournment but finding no justification for the same, the evidence of the defendant was closed by order of the court. The lower appellate court vide order dated 29.7.2009 dismissed the application filed by the defendant under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Consequently, the appeal was also dismissed by the lower CR No. 5638 of 2009 -3- appellate court vide the order of the even date. After hearing the learned counsel for the petitioner and perusing the file, no ground to exercise its jurisdiction by this Court under Article 227 of the Constitution of India is made out, especially when the defendant-petitioner had been negligent through out in prosecuting the case without any reasonable explanation. Dismissed. September 25, 2009 (AJAY KUMAR MITTAL) gbs JUDGE