Civil Revision No. 6151 of 2009 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 6151 of 2009 Date of decision. 30 .09.2011 Reeta Rani .... Petitioner Versus Rakesh Chand and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Rahul Rampal, Advocate for the petitioner. Mr. P.K. Gupta, Advocate for respondent no.2. Mr. Rajan Bansal, Advocate for respondent no.3. **** Vijender Singh Malik, J. This revision petition has been brought by Reeta Rani, plaintiff no.2 under the provisions of Article 227 of the Constitution of India for setting aside the order dated 04.03.2009, passed by learned Additional District Judge, Barnala, vide which the application filed by the petitioner under section 5 of the Limitation Act for condonation of delay in filing the appeal has been dismissed. Civil Revision No. 6151 of 2009 --2-- The petitioner and respondent no.4 named Ravinder Kumar had filed a suit for permanent injunction restraining defendants from forcibly taking possession or interfering in their peaceful possession over the property in question. The property in question has been claimed as having been sold to Avon Kumar son of the petitioner and Ravinder Kumar, respondent no.4 by one Poonam Goel, vide registered sale deed dated 14.12.1994 and possession of the property was delivered at the said time itself. Avon Kumar died in the year 1996 and the petitioner is his only legal heir. The suit was contested by Gobind Kumar, respondent no.3, who claimed himself to be in possession of the suit property on the basis of judgment and decree dated 24.05.1999. Petitioner and Ravinder Kumar are closely related as Ravinder Kumar is sister's son of the petitioner. The petitioner is not a resident of Barnala where the suit property is located. She is, moreover, a lady and the suit property as well as the proceedings of the suit were looked after by Ravinder Kumar. The suit was dismissed by the trial court vide judgment and decree dated 05.08.2005. Thereafter, Ravinder Kumar, respondent no.4 entered into a compromise with Gobind Kumar and sold his part of the property to him. He never informed the petitioner with regard to the dismissal of the suit by the trial court. On 06.02.2006 husband of the petitioner came to Barnala and saw certain suspicious developments over the suit property and on Civil Revision No. 6151 of 2009 --3-- inquiry from Ravinder Kumar and his father, he came to know about the compromise between Ravinder Kumar and Gobind Kumar. He further made inquiries and came to know from his lawyer that the suit was dismissed on 05.08.2005. Copies of the judgment and decree were immediately applied for and without further delay, the appeal was filed on 22.02.2006 bringing an application under section 5 of the Limitation Act alongwith the same. The application has been resisted by respondents no.2 and 3. They filed the independent replies to the application. Respondent no.2 denied the suit to have been pursued before the trial court by Ravinder Kumar and his father Achhar Kumar. It is also denied that the petitioners did not have knowledge about the court proceedings. The other averments about the husband of the petitioner coming to Barnala , making inquiries and coming to know of the dismissal of the suit are also denied. Respondent no.2 has claimed the application to be malafide. It is averred that valuable right has accrued in favour of respondents no. 1 to 3 on non-filing of appeal against the judgment and decree dated 5.8.2005 within limitation. The story set up by the petitioner for the delay is said to be concocted. It is averred that the petitioner and Ravinder Kumar have been pursuing the case from the very beginning and had knowledge of the dismissal of the suit. It is also denied that the petitioner came to know about the dismissal of the suit only when her husband came to Barnala 15 days prior to the filing of the application. The application has been prayed to be dismissed. Civil Revision No. 6151 of 2009 --4-- On the pleadings of the parties, the following issues were framed by learned trial court:- “1- Whether there are sufficient grounds and reasons for condoning the delay infixing the appeal?OPA 2- Whether the application is not maintainable in the present form?OPD 3- Relief.” Taking evidence of the parties on these issues and hearing learned counsel representing them, learned Additional District Judge, Barnala has dismissed the application for condonation of delay, vide the order dated 04.03.2009. Learned Additional District Judge, Barnala had found under issue no.1 that the applicant could not make out any ground for condonation of delay in filing the appeal. However, under issue no.2, the application for condonation of delay was found maintainable. In view of the finding recorded on issue no.1, the application was dismissed. Aggrieved by the aforesaid order, the petitioner has brought this revision petition. I have heard Shri Mr.Rahul Rampal, learned counsel for the petitioner, Shri P.K. Gupta, learned counsel for respondent no.2 and Shri Rajan Bansal, learned counsel for respondent no.3 and have gone through the record. Civil Revision No. 6151 of 2009 --5-- Learned counsel for the petitioner has submitted that the petitioner could not appear in the witness box on account of her illness and, therefore, her attorney appeared in her place. According to him, no adverse inference could be drawn against the petitioner for her non- appearance in the witness box in her own cause. It is further submitted that Ravinder Kumar, respondent no.4 is sister's son of the petitioner. According to him, he colluded with respondent no.3 and did not inform the petitioner of the decision of the suit in time. According to him, Ravinder Kumar entered into a compromise with Gobind Kumar and sold his portion of the property to Gobind Kumar without informing the petitioner. Learned counsel for the petitioner has further submitted that learned Additional District Judge, Barnala was not justified in observing in the impugned order that the petitioner could not specify the date of his coming to the property in dispute and finding some suspicious developments there, giving cause for inquiry and coming to know about the decision of the suit. He has submitted that the date for the same is there as 06.02.2006 and it is there from the very beginning, as is mentioned in the application itself. He has submitted that a meritorious case should not be allowed to be dismissed without touching the merits on the ground of delay in filing the appeal. He has submitted that the applicant for condonation of delay is not required to explain each day's delay. He has submitted that the relationship between the petitioner and Ravinder Kumar and the fact that the petitioner was not the resident of Civil Revision No. 6151 of 2009 --6-- Barnala, where the property was situated would make out a case for condonation of delay. Learned counsel for the respondents, on the other hand, have submitted that Reeta Rani, petitioner did not step into the witness box to state her case. According to them, Kewal Krishan, attorney of the petitioner stepped into the witness box as AW-1. They have submitted that there is no believable evidence to prove that the petitioner had suffered from some medical problem on account of which, she was unable to appear in the witness box. The whole case of the petitioner is based on the fact that Ravinder Kumar, sister's son of the petitioner, did not inform the petitioner about the decision of the suit and had entered into a compromise with Gobind Kumar and sold the share of his property to him. Kewal Krishan, who appeared in the witness box as an attorney of Reeta Rani, has stated that the dispute arose between the petitioner and the family of Ravinder Kumar including Achhar Kumar on account of which they were not on speaking terms. It is stated by him that on account of that rift, Ravinder Kumar did not inform the petitioner of the decision of the suit. The statement on the part of Kewal Krishan reveals that Ravinder Kumar and Reeta Rani had fallen apart earlier to the decision of the suit. The time when their relations suffered in this manner was a fact to be proved by Kewal Krishan. There is nothing on the record to suggest that the relationship between the two developed the rift soon before the decision of the suit. Whenever it may have Civil Revision No. 6151 of 2009 --7-- developed, the same should have put the petitioner at her guard in pursuing her case. When the relations between the petitioner and Gobind Kumar went to the stage where they were not on even speaking terms, she could not expect from Ravinder Kumar to inform her of the decision of the suit. In this event I find that either the story of the relationships between Ravinder Kumar and Gobind Kumar getting sour is false or she had been independently pursuing the litigation and there was no cause for her to depend on Ravinder Kumar for the information about the developments in the suit. Kewal Krishan is said to have reached the spot and noticed some suspicious developments. Nothing has been specified with regard to those suspicious developments. In the absence of the same, it cannot be said that he would have gone for an inquiry and would have come to know of the decision of the suit having been made on 05.08.2005. Reeta Rani is said to have suffered brain haemorrhage. No evidence to prove the same as also the time when she suffered this ailment, has been led in this case. So it would be deemed to be a case where the petitioner failed to appear in the witness box in her own cause and adverse inference is available against her under the provisions of section 114 illustration(g) of the Evidence Act. In this regard, learned counsel for the respondents have cited before me a decision of Hon'ble Supreme Court of India reported as Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Behera and another, 1999(1) Judicial Reports (Civil & Rent), 675, the ratio of which fully supports the case of the Civil Revision No. 6151 of 2009 --8-- respondents. For the aforesaid reasons, I have not been able to find any convincing ground to agree with the submissions of learned counsel for the petitioner. Finding no ground to interfere with the impugned order, the revision petition is dismissed. (VIJENDER SINGH MALIK) JUDGE 30.09 .2011 dinesh