IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 01.12.2010 C.R.No.5849 of 2001 Suresh Kumar (dead) through his LRs and another ...Petitioners Versus Krishan and another ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : None. HEMANT GUPTA, J. (Oral) Respondent No.1 Krishan filed a suit for declaration to the effect that he is owner in possession of the land in dispute. In the said suit, the petitioners herein filed an application under Order 1 Rule 10 of the CPC for impleading them in the suit being proper and necessary party to the suit. The said application was dismissed on 22.02.1994 and the suit was decreed vide separate judgment and decree of the said date on the basis of compromise. The petitioners filed an appeal before the learned first Appellate Court. An application for condonation of delay of one day in filing of the said appeal was filed. The learned first Appellate Court dismissed the application for condonation of delay and consequently the memorandum of appeal vide order dated 30.04.2001. It is the said order, which is subject matter of challenge in the present revision petition. The learned first Appellate Court has found that the application for obtaining certified copy was applied on 23.02.1994 and the same was prepared and supplied on 26.02.1994. Therefore, the appellants could file C.R.No.5849 of 2001 appeal on or before 28.03.1994, whereas the appeal has been filed on 30.03.1994. The explanation of the petitioner that he started vomiting on 28.03.1994 and had to take medical treatment was not believed. Consequently, the application for condonation of delay was dismissed. The learned first Appellate Court has also returned a finding that the appeal against order under Order 1 Rule 10 of the CPC does not lie and the only remedy was to file revision petition before this Court and that the application for leave to appeal was filed on 09.12.1999 i.e. after a gap of more than 5 ½ years and that even the application for condonation of delay was not filed with the appeal and the same was filed after 6 ½ years. Therefore, no case is made out for condonation of delay. Section 96 of the CPC provides that an appeal shall lie from every decree passed by any Court. Therefore, an appeal against the judgment and decree dated 22.04.1994 was maintainable before the first Appellate Court. In terms of the Order 43 Rule 1-A, any order passed in a suit against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party in an appeal has right to contend that such order should not have been pronounced. Therefore, in terms of Order 43 Rule 1A read with Section 96 of the CPC, an order passed by the trial Court declining application for impleadment could be challenged by the petitioner before the first Appellate Court. In respect of condonation of delay, the Hon’ble Supreme Court in a case reported as N. Balakrishanan Vs. Krishnamurthy, AIR 1998 SC 3222, has laid down principles and it has been held that unless there are lack of bonafides in filing of appeal, the delay in appeal should be condoned. It was held to the following effect : 2 C.R.No.5849 of 2001 “It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation.” The reasoning given by the first Appellate Court that the application for condonation of delay was not filed with the appeal, but filed after 6 ½ years is unconsequential. It is the case of the petitioners that the appeal was filed on 29.03.1994. The learned first Appellate Court returned a finding that the appeal was presented not on 29.03.1994, but on 30.03.1994. A perusal of the record shows that the Reader of the Court has made an endorsement on the memorandum of appeal on 29.03.1994 i.e. Court fee is correct and no caveat has been filed. Thereafter, it was posted for hearing before the learned District Judge on 30.03.1994. Thus, it cannot be said that the appeal was not filed on 29.03.1994. Consequently, the delay of one day in filing of the appeal is condoned. The order passed by the learned first Appellate Court is set aside. The matter is remitted back to the learned first Appellate Court for decision of appeal on merits in accordance with law. 01.12.2010 (HEMANT GUPTA) Vimal JUDGE 3