C.R.No. 111 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 111 of 2011 (O&M) Date of decision: 7.1.2011 Gaje Singh ......Petitioner Versus Sukhvir Singh .......Respondent ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. N.K. Malhotra, Advocate, for the petitioner. **** SABINA, J. Plaintiff-Sukhvir Singh filed a suit for recovery against the petitioner. The suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 2.9.2009. Aggrieved by the same, petitioner preferred an appeal alongwith application seeking condonation of delay in filing the appeal. Vide the impugned order the application seeking condonation of delay in filing the appeal was dismissed and consequently the appeal was dismissed being time barred. Hence, the present petition by the defendant. Brief facts of the case, as noticed by the trial Court in paras No.1 and 2 of its judgment, read as under :- “ The present suit for recovery of Rs.1,75,000/- has been filed C.R.No. 111 of 2011 (O&M) 2 by the plaintiff against the defendant on the averments that the defendant took a loan of Rs.1,60,000/- from the plaintiff on 13.2.2003 with interest @ 0.5 % per month. The defendant executed a pronote and receipt in consideration thereof on 13.2.2003 in the presence of witnesses. The money was to be paid by the defendant on demand but he failed to do so. It is further averred that on 4.6.2004, a demand notice was served on the defendant by registered post in pursuance of which the defendant gave reply dated 23.6.2004 and denied the claim of the plaintiff. As a consequence, the present suit has been filed by the plaintiff. 2. Upon notice, the defendant appeared and filed his written statement in which preliminary objections to the effect that present suit is not maintainable, the suit is false and frivolous, the plaintiff has no locus standi and the plaintiff has not come to the Court with clean hands were taken. On merits, the defendant specifically denied the execution of alleged pronote and receipt. The defendant has prayed for dismissal of the suit of the plaintiff. An additional plea has been taken by the defendant wherein he has averred that in a family settlement, the plaintiff had given an amount of Rs.1,50,000/- to the defendant without interest on the condition that the repayment will be made as and when the defendant will be in a suitable condition. On the pleadings of the parties, following issues were framed by the trial Court:- C.R.No. 111 of 2011 (O&M) 3 1. Whether the plaintiff is entitled for the decree of recovery of Rs.1,75,000/- alongwith agreed interest ? OPD 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus standi and cause of action to file the present suit ? OPD 4. Relief. Learned counsel for the petitioner has submitted that the learned Additional District Judge had erred in dismissing the application seeking condonation of delay in filing the appeal. The appeal filed by the petitioner should have been decided on merits. After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. There is no doubt that a liberal approach is liable to be adopted while dealing with an application seeking condonation of delay in filing the appeal, but the party is required to establish that the delay in filing the appeal was neither intentional or mala fide. In the present case, the petitioner took up the plea that the impugned judgment and decree were passed on 2.9.2009 and he came to know about the same on 19.12.2009 and thereafter he applied for the certified copy of the judgment and decree on 12.1.2010. The certified copy of the judgment and decree were received on 15.1.2010 and thereafter the appeal was filed on 25.1.2010. Notice was issued to the plaintiff. However, copy of the application seeking condonation of delay in filing the appeal supplied to the plaintiff had different averments. In the said application it was averred that the petitioner C.R.No. 111 of 2011 (O&M) 4 came to know about the passing of the impugned judgment and decree on 12.1.2010 when he received summons qua execution. In the copy of grounds of appeal supplied to the plaintiff plea taken was that certified copies of the judgment and decree had been applied on 22.9.2009 and the copies were prepared on 6.10.2009 and were received by the petitioner on 6.10.2009 and thereafter appeal had been filed within limitation. Criminal case was also pending between the parties and on 26.11.2009 and 5.12.2009 the petitioner alongwith his counsel had appeared in the criminal case. Counsel in the criminal case as well as in the present case is the same. In these circumstances, the learned Additional District Judge rightly dismissed the application filed by the petitioner seeking condonation of delay in filing the appeal as the petitioner had not come to the Court with clean hands. Dismissed. (SABINA) JUDGE January 7, 2011 Anand