RSA No.2405 of 2010 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: February 23, 2011 RSA No. 2405 of 2010 Prithvi Singh .....Appellant Versus Haryana State Co-operative Land Development Bank Ltd. and others .......Respondents RSA No. 2973 of 2010 Haryana State Co-operative Land Development Bank Ltd. and others .....Appellants Versus Prithvi Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Amit Prashar, Advocate for the appellant (for respondent No.1 in RSA No.2973 of 2010) Mr.S.S.Dalal,Advocate for respondents No.1 and 2 (for appellant in RSA No. 2973 of 2010) **** RSA No.2405 of 2010 2 SABINA, J. Vide this judgment, the above mentioned two appeals would be disposed as they have arisen out of the same suit. Plaintiff had filed a suit for declaration with consequential relief of mandatory injunction. The case of the plaintiff was that he had joined as a Clerk with defendant No.2 on 8.1.1990. Plaintiff had been discharging his duties honestly and diligently. Plaintiff was allowed annual increment vide letter dated 21.1.1994. Plaintiff had applied for earned leave from 1.11.1993 to 30.11.1993 and the same was duly sanctioned. Plaintiff prayed for extension of leave. However, the plaintiff was illegally charge-sheeted on the allegation that he had remained willfully absent from duty. Thereafter, plaintiff was dismissed from service vide letter dated 19.09.1995. Plaintiff filed the suit challenging the said order. Defendant No.1 in its written statement averred that the plaintiff had joined his duties on 8.01.1990 with defendant No.2. Plaintiff had over-stayed leave and request of the plaintiff for extension of the leave was declined. Despite direction given by defendant No.1, plaintiff did not bother to report for duty. Hence, the dismissal order was liable to be upheld. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether charge-sheet dated 16.8.94, Inquiry report dated 2.6.95, show cause notice dated 26.6.95 and order dated 19.9.95 passed against plaintiff are illegal, null and RSA No.2405 of 2010 3 void and not binding on the rights on the plaintiff?OPP 2.Whether plaintiff has not come in court with clean hands and concealed the true and material facts of the court?OPD 3.Whether requisite notice under Section 124 of Haryana Co-operative Societies Act, 1984 was not served on defendants prior to institution of suit?OPD 4.Whether suit is pre-mature as plaintiff has failed to avail statutory remedies of appeal?OPP 5.Whether civil court has no jurisdiction to entertain the present suit?OPD 6.Relief” Vide judgment and decree dated 14.5.2002, the Civil Judge (Junior Division) Kurukshetra decreed the suit of the plaintiff. The trial Court held that it was a case of no material before the Inquiry Officer to come to the conclusion that the charge of absence levelled against the plaintiff was proved. In fact, the Inquiry Officer had simply held that since the plaintiff had failed to appear in the inquiry proceedings, the charge levelled against him stood proved. The inquiry report was also not supplied to the plaintiff along with show cause notice. It was further held that the dismissal order was,thus, illegal, null and void. Aggrieved by the judgment and decree passed by the trial Court, defendants No. 1 and 2 preferred an appeal along with application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The Additional District Judge Kurukshetra dismissed the application under Section 5 of the Limitation Act vide order dated 27.2.2010 and also proceeded to RSA No.2405 of 2010 4 decide the appeal on merits. The judgment and decree passed by the trial Court were modified by the Additional District Judge dated 27.2.2010. Hence, the present appeals by the plaintiff as well as defendants No. 1 and 2. Learned counsel for the plaintiff has submitted that once the application under section 5 of the Limitation Act was dismissed by the First Appellate Court, the appeal could not have been decided on merits. The appeal had been filed by defendants No.1 and 2 after six years and six months of the passing of the judgment and decree by the trial Court. Learned counsel for defendants No. 1 and 2, on the other hand, has submitted that the application under Section 5 of the Limitation Act was liable to be allowed as delay in filing the appeal had been duly explained. The substantial question of law involved in this appeal is as to whether the first appellate Court could decide the appeal on merits once it had held the appeal to be time bared while dismissing the application for condonation of delay in filing the appeal. Vide order dated 27.2.2010, the learned Additional District Judge dismissed the application seeking condonation of delay in filing the appeal. The case of defendants No. 1 and 2 was that the plaintiff had stated that he was ready to join as a Clerk and would forego the claim qua back wages. Due to this reason, defendants No. 1 and 2 did not challenge the decree passed by the trial Court. Thereafter, plaintiff was allowed to join duty. However, thereafter, the plaintiff filed the application for execution of the decree passed by the trial Court and summons were received by defendants No. 1 and 2 RSA No.2405 of 2010 5 on 24.9.2008. In reply to the said application, it was averred that the plaintiff had never agreed to forego his claim qua back wages. Since the appeal had been filed after a long delay, the application seeking condonation of delay in filing the appeal was liable to be dismissed. In the present case, the delay in filing the appeal, thus, cannot be said to be bona fide. Defendants No. 1 and 2 should have challenged the judgment and decree passed by the trial Court within the period of limitation. However, the defendants waited for more than six and a half year before the filing of appeal. The plea taken by defendants No. 1 and 2 that they had not filed the appeal due to an agreement between the parties that the plaintiff would not claim back wages is no ground to hold that the delay in filing the appeal was bona fide. Although a liberal approach is required to be adopted while dealing with an application for condonation of delay in filing the appeal but the delay in filing the appeal must be bona fide. In the present case, the explanation furnished by defendants No. 1 and 2 qua delay in filing the appeal is not sufficient, in the facts and circumstances of the case, to condone the delay. Accordingly, order dated 27.2.2010 whereby the application seeking condonation of delay in filing the appeal is upheld. Since the appeal was held to be time barred vide order dated 27.2.2010, the first appellate Court erred in deciding the appeal on merits. The first Appellate Court could not have touched the same on merits once it was held to be time barred. The substantial question of law stands answered accordingly. Accordingly, Regular Second Appeal No. 2405 of 2010 is RSA No.2405 of 2010 6 allowed. Consequently, the judgment and decree passed by the first appellate Court are set aside. Regular Second Appeal No. 2973 of 2010 is dismissed. The judgment and decree dated 14.5.2002 passed by the trial Court are upheld. ( Sabina ) Judge February 23,2011 arya