C.R No.764 of 2011(O&M) #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.764 of 2011(O&M) Date of decision: 4.3.2011. Jarnail Singh .............Petitioner v Karnail Singh ..............Respondent CORAM: HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr. S.S. Joshi, Advocate for the petitioner. Jaswant Singh,J C.M.No.6057-CII of 2011 Application is allowed. Annexures P.8 and P.9 are taken on record. C.R.No.764 of 2011 By way of present revision petition under Article 227 of the Constitution, petitioner has prayed for setting aside the order dated 4.1.2011 passed by learned District Judge, Sangrur whereby his application under Rule 3-A of Order XLI CPC for condonation of 60 days delay in filing the appeal against the judgment and decree dated 5.2.2010 was dismissed. Brief facts of the case are that plaintiff-respondent filed a civil suit No.752 of 9.4.2008 for recovery of Rs.1,14,268/- and the C.R No.764 of 2011(O&M) #2# same was decreed vide judgment and decree dated 5.2.2010 passed by learned Civil Judge (Jr.Division), Dhuri and it was ordered that the plaintiff-respondent is entitled to recover the amount of Rs.85,000/- from the defendant-petitioner along with interest @ 9% per annum from the date of execution of pronote and receipt till the date of decree and future interest @ 6 % per annum from the date of decree till its realization. Aggrieved against the judgment and decree dated 5.2.2010, the defendant-petitioner filed an appeal (P.2) before the learned District Judge, Sangrur accompanied by an application dated 10.5.2010 (P.6) under Rule 3-A of Order XLI CPC for condonation of 60 days delay in filing the appeal. Learned District Judge was not prima facie convinced with the explanation given by the defendant-petitioner for condonation of delay. Therefore, it was thought appropriate to decide the application for condonation of delay first after affording proper opportunities to the defendant-petitioner to prove that he was prevented by sufficient cause from making the appeal in time. Notice of the application for condonation of delay was issued to the plaintiff-respondent, who filed reply and the averments made in the application were denied and from the pleadings of the parties, following issues were framed by learned District Judge vide order dated 4.10.2010: “i. Has the applicant been prevented by a sufficient cause from making the appeal in time?OPA ii) Relief?” C.R No.764 of 2011(O&M) #3# Defendant-petitioner appeared as AW1 and repeated the averments made in the application and placed on record his affidavit as Ex.AW1/A. Undisputedly, certified copy of the judgment and decree dated 5.2.2010 was available on record before the learned District Judge, Sangrur and after perusal of the same, it was noted that the suit was decided in the presence of both the parties. The defendant- petitioner filed an application for obtaining the certified copy of the judgment and decree on the same very day i.e 5.2.2010 and the copy was ready for delivery on 11.2.2010. Thus, an appeal against the judgment and decree could be filed upto 13.3.2010 but the same has been filed only on 10.5.2010. Therefore, it was incumbent upon the defendant-petitioner to explain the sufficient cause which prevented him from preferring the appeal against the judgment and decree dated 5.2.2010 beyond the period of limitation. A perusal of application dated 10.5.2010 (P.6) reveals that the only explanation given by the defendant-petitioner is that he met with an accident and remained bed-ridden for about three months and thus there is delay of 60 days in filing the appeal due to the circumstances beyond his control. Doctor's Certificate (P.4) was attached with the application. A reading of the same finds mention that Jarnail Singh son of Ajaib Singh met with a scooter accident on 9.2.2010 and was advised complete rest for three months on 10.2.2010 and was further advised to come after three months on 5.5.2010. It is C.R No.764 of 2011(O&M) #4# not clear from this Certificate as to what happened with the defendant- petitioner in the so called accident and what was the nature of injuries sustained by the defendant-petitioner. Dr. Swaran Singh was examined as AW2. The abovesaid Certificate was placed on record as Ex.A1 and the cross examination of AW2 is reproduced hereunder: “I am registered medical practitioner. I have no qualification or experience in orthopedic. I am maintaining an out patient register regularly. It is correct that in the register father name of Jarnail Singh is not written. It is also correct that signatures or thumb mark of Jarnail Singh is not appearing either on register or on certificate Exhibit A1. It is also correct that entry pertaining to Jarnail Singh is last entry of 9.2.2010. It is correct that the register has not been paginated. It is also correct that register brought by me today has not been verified by any competent authority. No receipt book is being maintained by me. No receipt was issued to patient under reference. All the entries on the page pertaining to relevant entry are in my hand. It is wrong to suggest that entry No.38 on Exhibit R1 has been subsequently made falsely. Jarnail Singh did not come to me thereafter and did not show the x-ray report. I do not know that left leg of Jarnail Singh was fractured. It is wrong to suggest that I have deposed falsely and have prepared false record to help Jarnail Singh.” A perusal of cross examination reveals that the said doctor is having no qualification or experience in orthopedics. It is also clear that he was not having even the x-ray report of the defendant-petitioner but still he advised the defendant-petitioner the rest for three months on the very first occasion, which is unbelievable and seems to be C.R No.764 of 2011(O&M) #5# concocted. Keeping in view the cross examination of AW2 reproduced hereinabove it can safely be concluded that the story put-forth by the defendant-petitioner regarding his accident is not convincing and the same cannot be accepted as true. Therefore, the learned District Judge has rightly come to the conclusion that the defendant-petitioner has failed to prove that he was prevented by sufficient cause from making the appeal in time and consequently rightly dismissed his application for condonation of delay and this Court also concurs with the observation made by learned District Judge. Keeping in view the facts and circumstances discussed hereinabove, this court does not find any illegality or perversity in the impugned order dated 4.1.2011 passed by learned District Judge, Sangrur warranting any interference under Article 227 of the Constitution. Dismissed. 4.3.2011. (Jaswant Singh) manoj Judge