R.S.A. No. 738 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 738 of 2004 (O&M) Date of decision: 1.4.2009 Shekhar Verma ....appellant versus Kamla Devi and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vijay Sharma, Advocate, for the appellant. Mr. S.K. Rishi, Advocate, for respondents No. 1, 3 and 4. *** VINOD K. SHARMA, J. C.M. No. 4253-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 152 days in refiling the appeal. The ground taken for condonation of delay reads as under: - "That the above appeal was filed on 03 July, 2003. The registry of this Hon'ble Court raised some objections on 15.07.2003. Thereafter, inadvertently the file was misplaced in the office of counsel for the appellant. When the case was not listed for long time, on enquiry it was found that the case was not refiled and therefore it was not listed for hearing. That immediately the case files were searched and the present appeal which was inadvertently placed in the R.S.A. No. 738 of 2004 (O&M) -2- decided cases was got searched and it was refiled on 23 January, 2004. That the registry of this Hon'ble Court again raised some objections on 24.01.2004. Thereafter the case was again refiled on 12 February, 2004. Due to above circumstances the delay of 152 days was caused in refiling in appeal." However, the ground taken herein cannot be said to be sufficient cause for condonation of delay in view of the law laid down by this Court in Krishan Dev Dhiman Vs. Mahesh Bhatia and others, 2008(4) P.L.R. 23 It may be mentioned here that the learned counsel for the appellant has placed reliance on the judgment of this Court in Karnail Singh Vs. Piara Singh, 2002(2) PLJ 261 to contend that delay on account of mis-placing of brief or miximing up the same in the decided cases by the outgoing clerk of the counsel is excusable and sufficient for condoning the delay in refiling. The learned counsel for the appellant also placed reliance on the judgment of this Court in Babu Singh Vs. M.C. Ropar, 2002(2) RCR (Civil) 84, wherein this Court has been pleased to lay down as under: - "There cannot be any doubt that an appeal filed without copy of the decree is no appeal in the eyes of law. But as held by the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others, AIR 1961 SC 832 where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and decree before the decree drawn up as he R.S.A. No. 738 of 2004 (O&M) -3- has done all that he could and he has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. The time taken by the office or the court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree. Further it has been held in the decision above that the litigant deserves to be protected against the default committed or negligence shown by the Court ot its officers in the discharge of their duties. The Supreme Court also observed that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41 Rule 1 of the Code of Civil Procedure. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in case of defective presentation of appeals is that they should by carefully scutininsed at the initial stage soon after they are filed and the appellant required to remedy the defects. If at the time when the appeal is preferred a decree has already drawn up by the trial Court and the appellant has not applied for it in time it would be clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would however be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court, in such a case if an application has been made by the appellant for a certified copy of the decree, then all can be said against the appeal preferred by him is that the appeal premature since a decree has not been drawn up R.S.A. No. 738 of 2004 (O&M) -4- and it is a decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect, the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained." However, these judgments are not relevant to the peculiar facts of the case. A general assertion that file was mis-placed cannot be a ground for condonation of delay in view of the law laid down by this Court in Krishan Dev Dhiman Vs. Mahesh Bhatia and others, 2008(4) P.L.R. 23. Consequently, the application is dismissed. R.S.A. No. 738 of 2004 Keeping in view that the application for condonation of delay in refiling the appeal has been dismissed, the appeal is ordered to be dismissed as time barred. (Vinod K. Sharma) Judge April 1, 2009 R.S.