R.S.A.No.81 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.81 of 2008 (O&M) Date of Decision : 8.5.2009 M/s Haryana State Small Industries and Export Ltd. and another ....Appellants Versus Pardeep Kumar Sharma and another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mrs. Neena Madan, Advocate for the appellants. Mr.R.S.Sihota, Sr.Advocate with Mr.B.R.Rana, Advocate for the respondents. ... MAHESH GROVER, J. Delay in re-filing the appeal is condoned. This appeal by the defendants is directed against the judgments of the learned trial Court dated 23.1.2006 and that of the first appellate Court dated 26.2.2007. The plaintiffs/respondents filed a suit praying that plaintiff No.1 was in possession of sheds No.449 and 450 at HMT Ancillary Estate, Panchkula which were given to him on 5.1.1988 on the following terms and conditions :- R.S.A.No.81 of 2008 (O&M) -2- 1. The sheds are allotted to you on monthly rent of Rs.1500/- each shed. 2. That rent system will be for four years, after that the system will be changed to hire and purchase. The amount of rent paid will be adjusted towards the cost of shed, balance cost of shed will be paid in 8 equated yearly installments. 3. You are required to deposit Rs.7500/- as security money for each shed. 4. The security money will be adjusted towards the cost of shed. 5. The possession of the sheds should be taken within 15 days of allotment. 6. The cost of shed will be intimated soon. 7. Other terms and conditions conveyed subsequently. It was pleaded that according to the aforesaid terms, the rent system was to prevail for a period of four years and thereafter it was to be converted into a hire purchase system and the amount which was paid as rent was to be adjusted towards the subsequent hire purchase arrangement. It was pleaded that the plaintiffs/respondents had deposited security amount of Rs.15,000/- and paid Rs.16,000/- and Rs.1,00,000/- towards rent up to 31.7.1992. Rs.2,000/- were paid in excess towards the rent upto July, 1992 because a draft of round figure of Rs.1,00,000/- was purchased by them. However, still an amount of Rs.28,000/- was outstanding to complete the first system of four years. He also submitted documents R.S.A.No.81 of 2008 (O&M) -3- for obtaining loan to carry out the remaining financial transactions. The papers were submitted to the Haryana Financial Corporation but yet the needful was not done by the respondents. Legal notice was served upon the appellants in April, 1995 and again on 1.7.1995. It was submitted in the notices that the respondents had deposited a sum of Rs.4,66,000/- with appellant No.2 i.e. Haryana State Industrial Development Corporation which had accepted the same without any protest on 14.2.2005. Despite all this, the respondents were not adhering to the terms of the tenancy which was to be converted into hire purchase arrangement and the suit for declaration was accordingly filed. The appellants, who were arrayed as defendants, contested the suit. They did not deny the allotment of sheds to the plaintiff/respondent No.1. They also did not deny the receipt of payment and the terms of the tenancy preceding possession. But the amount of Rs.1,00,000/- as payment towards rent was denied. It was pleaded by them that because of the non-payment of rent they were compelled to serve notices dated 27.9.1989, 19.3.1990, 24.4.1990, 28.3.1991, 28.2.1993 and 26.8.1993 and yet the respondents failed to deposit the amount. Since the payment was not made notice was issued to the respondents on 4.2.1994 to remove the machinery from the shed failing which vacant possession of the premises in pursuance of resumption order was to be taken. The committee of the appellants thereafter visited the premises to obtain possession on 20.1.1995, upon which an affidavit was given by plaintiff No.1 that they will pay a sum of Rs.7,20,377/-, out of which Rs.1,00,000/- were to be paid on R.S.A.No.81 of 2008 (O&M) -4- or before 15.2.1995 and the remaining amount of Rs.6,20,377/- was to be deposited by 31.3.1995. Even though a sum of Rs.1,00,000/- was deposited on 20.2.1995 and another sum of Rs.2,000/- was also paid but thereafter no other payment was made. Consequently, it was pleaded that even though the allotment was to be converted into hire purchase arrangement, yet a sum of Rs.9,10,094.40 was due against the respondents as on 13.6.1995, which was not paid and consequently the appellants did not resort to the system of hire purchase arrangement as pleaded by the respondents. The parties went to trial on the following issues :- 1. Whether the plaintiff is entitled to remain in possession of sheds No.449 and 450 situated at HMT Ancillary Estate, Panchkula being tenant?OPP 2. Whether the plaintiff is entitled to allotment of the plot on the basis of hire purchase agreement as per allotment dated 5.1.1988?OPP 3. Whether the affidavit dated 2.2.95 obtained by misrepresentation, is null and void?OPP 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the plaintiff has concealed true and material facts from the court?OPD 6. Whether the suit is time barred?OPD 7. Whether the plaintiff has no cause of action to file the present suit?OPD 8. Relief. R.S.A.No.81 of 2008 (O&M) -5- The learned trial Court decreed the suit of the plaintiffs/respondents in the following terms :- “As a sequel to my findings on the foregoing issues, suit of the plaintiff partly succeeds and is hereby partly decreed with costs to the effect that the plaintiff is entitled to pay cost of sheds i.e. Rs.6,40,271/- alongwith future and pendente lite interest @ 18% p.a. and the defendant is directed to execute the conveyance deed in favour of the plaintiff in case the plaintiff deposits above said amount within two months from passing this judgment, failing to which suit of the plaintiff stands dismissed automatically. Remaining relief of the plaintiff is hereby dismissed......” While decreeing the suit, the learned trial Court concluded that the plaintiff/respondent was entitled to the allotment of sheds on the basis of hire purchase agreement as per the allotment letter dated 5.1.1988 on payment of Rs.6,40,271/- along with 18% future and pendente lite simple interest. The plaintiff/respondent thereafter filed an appeal against this order of the learned trial Court primarily assailing the interest component of the aforesaid decree granted by the learned trial Court. The first appellate Court vide its order dated 29.5.2006 disposed of the appeal in the following terms :- “No mention was made in Ex.P3 regarding the payment of interest by the allottee-plaintiff. In view of this fact and drawing support from authority Karam Vir Dhir Vs. Punjab State (supra), I hold that the defendants- respondents were entitled to pendente lite and future R.S.A.No.81 of 2008 (O&M) -6- interest only at the rate of 6% p.a. from the date of filing of the suit till the date of deposit. The judgment and decree passed by the trial court was illegal only to the above extent and is modified accordingly. The appeal filed by the plaintiff is accepted accordingly. The parties are left to bear their own costs throughout....” The appellants in turn preferred a separate appeal which was dismissed on the point of limitation vide order passed by the learned first Appellate Court on 26.2.2007 which has resulted in filing of the present regular second appeal. It has been contended by the learned counsel for the appellants that the appeal has been dismissed purely on the question of limitation and no order on merit has been passed which has seriously prejudiced his case. It is his case that being a government organisation delay can be expected for the reason that the file has to travel to various quarters before a decision is ultimately taken. Reliance was placed on a judgment of the apex court reported as State of Bihar v. Subhash Singh 1997(2) R.C.R.(Civil), 307. On the other hand, learned counsel for the respondents has drawn attention of this Court to Ex.R1 which was placed on record by way of C.M.No.1958-C of 2009 which was the judgment passed in the appeal preferred by the plaintiffs/respondents. It was pleaded by him that the appeal by the appellants against the judgment of the learned trial Court was preferred with a delay of 184 days after the decision of the suit. He further contended that the appellants contested the appeal preferred by him and it is not their case that they R.S.A.No.81 of 2008 (O&M) -7- were not within the knowledge of the proceedings and in this view of the matter, the carelessness, even if expected as a procedural norm in the offices, cannot be condoned. I have heard the learned counsel for the parties and have perused the impugned judgments. The only point which has been raised before this Court is that the appeal of the appellants which has been dismissed purely on the question of limitation has caused serious prejudice to them. It is the case of the appellants that the matter should have been decided on merits. According to the learned counsel for the appellants the following questions of law arise for the consideration of this Court :- 1. Whether without passing any order on merits the learned first appellate Court can decide the appeal on the application u/s 5 of the Limitation Act? 2. Whether the judgment passed by the lower court below is illegal, arbitrary and against the settled law and the statutory provisions? Upon appraisal of the impugned judgments, I am of the considered opinion that the appeal is totally devoid of any merit. The learned trial Court decreed the suit of the plaintiffs/respondents on 23.1.2006 whereupon an appeal was preferred by them which was also answered in May, 2006. The appellants were contestants therein and the appeal was prosecuted to its logical end. The appeal preferred by the appellants was filed against the judgment of the learned trial court after 184 days of the decision of the suit in favour of the R.S.A.No.81 of 2008 (O&M) -8- plaintiffs/respondents. In this view of the matter, the approach of the first Appellate Court while dismissing the appeal on the question of limitation can hardly be termed to be erroneous especially when a legitimate appeal filed by respondents was contested by the appellants who were arrayed as respondents therein. The State as a litigant before the Courts cannot derive such advantage for the procedural delays which overstep the concept of an expected reality, to make a foray into the area of wilful neglect. There is no doubt that the machinery of the State occasionally takes time because of pre-occupation of the officials some times in works which may be more pressing than the litigation itself, but the fact remains that the Court cannot ignore that a casual and callous approach by a litigant before it, whether it be a private litigant or a State. A litigant cannot take undue advantage of the indulgence which the Court can grant to a litigant under Section 5 of the Limitation Act by clothing negligence in procedural attributes. From a perusal of the facts it is abundantly clear that the appellants were active contestants before the first appellate Court in the appeal preferred by the respondents and were expectedly conscious of the judgment of the learned trial court as also the pendency of the appeal which ought to have accelerated them into action based on promptitude, but obviously the same was not done and thus the approach of the first appellate Court cannot be faulted with. Even before this Court the appeal has been filed with a delay of 156 days which has been attributed to procedure. The questions of law which have been framed by the R.S.A.No.81 of 2008 (O&M) -9- learned counsel for the appellants have to be answered to say that if the facts reveal that the action of the litigant is too callous and reflects wilful neglect then no indulgence can be granted under Section 5 of the Limitation Act and the Court dealing with the matter is very well justified to decline the claim to the litigant on the basis of the bar of limitation. The judgment of the first appellate Court cannot be termed to be illegal so as to warrant any interference in a regular second appeal. Dismissed on merit as well as on delay. 8.5.2009 (MAHESH GROVER) JUDGE dss