Civil Revision No. 6624 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6624 of 2009 Date of decision : April 21, 2010 Hukma ....Petitioner versus Ranbir Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sudhanshu Makkar, Advocate, for the petitioner Mr. Ajay Jain, Advocate, for respondent no. 1 None for respondents no. 2 to 7 L.N. Mittal, J. (Oral) Hukma defendant no. 2 has filed this instant revision petition under Article 227 of the Constitution of India challenging judgment and decree dated 31.7.2008 passed by learned Additional District Judge, Bhiwani, thereby dismissing petitioner's application for condonation of delay in filing the first appeal and consequently also thereby dismissing the appeal. I have heard learned counsel for the parties and perused the case file. Initially the petitioner had filed RSA No. 3159 of 2008 against judgment and decree dated 31.7.2008 of the lower appellate court. Civil Revision No. 6624 of 2009 -2- However, since second appeal was not maintainable, the same was withdrawn with liberty to file revision petition, vide order dated 9.10.2009, Annexure P/3 passed by this Court. Thereafter the instant revision petition has been filed under Article 227 of the Constitution of India. Learned counsel for plaintiff-respondent no. 1 vehemently contended that instant revision petition under Article 227 of the Constitution of India is not maintainable as revision petition under section 115 of the Code of Civil Procedure (in short, CPC) could be filed by the petitioner. Learned counsel for the petitioner however contended that impugned judgment and decree of the lower appellate court could not be challenged by the petitioner by filing revision petition under section 115 CPC. In support of this contention, reliance has been placed on a Division Bench judgment of Madhya Pradesh High Court in the case of Shaligram versus Nagar Palika, Vidisha, 2004(4) RCR (Civil) 81. I have carefully considered the rival contentions. In view of proviso to section 115(1) CPC, revision petition under section 115 CPC would not be maintainable against judgment and decree of the lower appellate court dismissing the appeal as time barred under Order 41 Rule 3- A CPC. This view is supported by Division Bench judgment of Madhya Pradesh High Court in the case of Shaligram (supra). Accordingly, the preliminary objection raised by learned counsel for respondent no. 1 is over ruled. Learned counsel for the petitioner contended that the petitioner could not file first appeal within limitation on account of paralytic attack and delay of 2 months 22 days in filing the appeal could have been condoned by the lower appellate court. The contention has been opposed Civil Revision No. 6624 of 2009 -3- by learned counsel for respondent no. 1 by submitting that there was no sufficient material on record to substantiate the petitioner's plea that he had suffered paralytic attack. I have carefully considered the aforesaid contention. Law of condonation of delay is liberal. Delay of 2 months and 22 days in filing the first appeal could not be said to be abnormally long delay. On the other hand, the said delay should have been condoned by the lower appellate court by imposing some costs on the petitioner to compensate plaintiff- respondent no. 1. In view of the aforesaid, the impugned judgment and decree of the lower appellate court are not sustainable. The revision petition is accordingly allowed . Judgment and decree dated 31.7.2008 passed by learned Additional District Judge, Bhiwani are accordingly set aside and delay of 2 months and 22 days in filing the appeal with the lower appellate court is condoned subject to payment of Rs 2500/- as costs precedent payable to plaintiff-respondent no. 1. Parties are directed to appear before lower appellate court on 24.5.2010. ( L.N. Mittal ) April 21, 2010 Judge 'dalbir'