R.S.A NO.3016 OF 2007 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO.3016 OF 2007 (O & M) DECIDED ON : 05.07.2010 Pankaj Mohan and another ...Appellants versus Parkash Singh and others ...Respondents CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. C. M. Munjal, Advocate, for the appellants. Mr. Y. P. Khullar, Advocate, for the respondents. K. C. PURI, J. (ORAL) The defendants-appellants have filed regular second appeal against the judgment dated 28.07.2005 passed by Shri S.P.Bangarh, Additional District Judge, Ludhiana vide which the appeal preferred by the plaintiffs against the judgment and decree dated 01.03.2005 passed by Shri Manoj Kumar, Civil Judge(Junior Division), Ludhiana, was accepted. Briefly stated, the facts of the case are that the plaintiffs filed a suit for recovery of Rs.70,000/- as principle amount and Rs.24,500/- as interest @ 12% per annum with the allegations that defendant No.1 is partner of M/s Punjab Plastics and defendant No.2 deals in manufacturing and supply of different kinds of plastic goods and containers. Initially, Parkash R.S.A NO.3016 OF 2007 (O & M) -2- Kaur was also the partner of M/s Punjab Plastics but she died leaving behind defendants No.3 and 4 as her legal heirs. Defendant No.1 took a loan from plaintiffs for a sum of Rs.70,000/- orally and executed receipt dated 19.06.1994 in token of having received the said amount. The amount was not paid. Legal Notice dated 06.05.1997 was served but defendant has not made any payment and as such, the suit was filed. Upon notice, defendant No.1 appeared and the remaining defendants were proceeded ex parte. Defendant No.1 filed written statement with preliminary objections that Parkash Kaur has retired from the firm M/s Punjab Plastics. In her place Tarjit Kaur w/o Harjit Singh Kalra has joined the firm as partner. The partnership constituting Pankaj Mohan and Tarjeet Kaur was dissolved on 21.11.1994. Tarjit Kaur is necessary party. Till the filing of written statement on 04.10.1999, the plaintiff has not filed original copy of the receipt dated 19.06.1994. On merits, the defendant denied the averments made in the plaint. The factum of taking loan was denied. It is pleaded that amount of Rs.5,20,000/- has been received by the plaintiff from M/s Punjab Plastics. The matter was resolved during negotiation and as per decision arrived at the plaintiff paid Rs.70,000/- in cash to the answering defendant. On receiving the same on behalf of the firm, it was denied that any amount was payable by the defendant to the plaintiff. Later on, defendant No.1 also absented from the Court and was proceeded ex parte. R.S.A NO.3016 OF 2007 (O & M) -3- The plaintiff examined Darshan Singh as PW-1, Manjinder Singh as PW-2, Parkash Singh as PW-3 and thereafter closed the ex parte evidence. The learned trial Court, after appraisal of the evidence, returned the findings that there is alteration in receipt dated 19.06.1994 and consequently, dismissed the suit of the plaintiff. Feeling dissatisfied with the above said judgment dated 01.03.2005 passed by Civil Judge (Junior Division), Ludhiana dismissing the suit of the plaintiff. The plaintiff filed Regular First Appeal which was heard and decided by Additional District Judge, Ludhiana and the appeal was accepted and the suit of the plaintiff for recovery of Rs.70,000/- along with interest @ 9% per annum from 19.06.1994 till institution of the suit and @ 6% per annum from the date of suit till today and at the same rate till realisation, was decreed against defendant No.1. Feeling dissatisfied with the judgment dated 28.07.2005, defendant No.1 has preferred the present regular second appeal. Along with the appeal, an application under Section 5 of the Limitation Act for condonation of delay of 681 days in filing the present appeal was filed. It is pleaded in the application that the appellants were proceeded ex parte before the trial Court but the suit was dismissed on 01.03.2005. The respondent filed an appeal against the judgment but no notice was given to the defendant. The R.S.A NO.3016 OF 2007 (O & M) -4- appellant came to know about the passing of the impugned judgment and decree of the lower Court when notice was received in execution proceedings. Thereafter, without further delay the present appeal has been filed. Since the impugned judgment has been passed without issuing any notice to the appellant, therefore, the present appeal is being filed from the date of knowledge i.e 01.08.2007 and therefore, there is delay of 681 days, which is not intentional. The application was resisted by the plaintiff- respondent. It is pleaded that appellant has stated that they have got the knowledge of the judgment on 01.08.2007 but in fact the defendant-appellant appeared before the trial Court on 11.10.2006 and sought adjournment for filing the objections. The appeal has been preferred on 15.05.2007. The delay from 11.10.2006 to 15.05.2007 has not been explained. The appellant has not come to the Court with clean hands and has made wrong and misleading averments in the present application that they came to know about the passing of impugned judgment on 01.08.2007. The application under Section 5 of the Limitation Act was accompanied by affidavit of Pankaj Mohan wherein it is mentioned that the date of knowledge of passing the judgment of First Appellate Court is 01.08.2007 and delay of 681 days has been sought to be condoned. However, on 24.10.2009, additional affidavit of Pankaj Mohan was filed in which it was mentioned that he for the first time, came to know about the passing of R.S.A NO.3016 OF 2007 (O & M) -5- impugned judgment when he was served with notice from the Executing Court on 11.10.2006 and the deponent engaged the counsel who appeared and sought time for filing the objections which was filed on 10.01.2007. Thereafter, execution was adjourned for different dates till 24.10.2009. It is further pleaded that the appeal has been preferred on 10.09.2007 and not on 15.05.2007 as mentioned by the respondent in the reply. It is further mentioned in the affidavit that there is delay of 440 days in filing the appeal from the ex parte decree dated 28.07.2005 passed by the Additional District Judge, Ludhiana till 11.10.2006 when the appellant was served in the execution proceedings. There is further delay of 333 days i.e from 11.10.2006 to 10.09.2007 i.e from the date of knowledge of passing of the impugned judgment till filing of the appeal. So, in this manner, total delay comes to 681 days. Prayer has been made for condoning the delay. Learned counsel for the appellant has submitted that although there is delay of 681 days in filing the appeal but the delay of 440 days i.e from the date of passing of ex parte decree till 11.10.2006, the appellant had no knowledge of the impugned decree and has further submitted that further delay of 333 days in filing the appeal is on account of the fact that appellant remained busy in filing the objections before the executing Court. It is further contended that the Court should be liberal in condoning the delay. In support of his contentions, learned R.S.A NO.3016 OF 2007 (O & M) -6- counsel has relied upon authority “Nabha Gaushala Committee (Regd.) Nabha vs. Narinder Singh & another” 2005 (3) Civil Court Cases 723 (P & H), “State of Kerala through Secretary & another vs. M/s K.Pharmaceutical Works” 2006 (3) Civil Court Cases 727 (P & H), “M.K.Prasad vs. P.Arumugam” 2001 (2) Apex Court Journal 60 (SC) and “Roshan Lal and others vs. Kewal Singh and others” 2008 (1) RCR (Civil) 679. In rebuttal, learned counsel for the respondent has submitted that in the application for condonation of delay, the appellant has pleaded that he acquired knowledge of judgment on 01.08.2007 whereas the defendant in reply has pleaded that the appellant appeared before the executing court on 11.10.2006 and as such, he must be having knowledge of the judgment prior to that date. It is further submitted that in the additional affidavit, appellant accepted the fact that they came to know about the passing of impugned judgment on 11.10.2006. There is absolutely no explanation for not filing the appeal from 11.10.2006 to 10.09.2007, which comes to 333 days. The Hon'ble Apex Court in authority “PUNDLIK JALAM PATIL (D) BY LRS vs. EXE ENG. JALGAON MEDIUM PROJECT and another” (2009-1) PLR 128 has held that where the parties made incorrect statement in the application seeking condonation of delay regarding the sufficient cause, the party taking a false stand to get rid of the limitation should not be encouraged to get R.S.A NO.3016 OF 2007 (O & M) -7- any premium on his falsehood, by condoning the delay. It is further laid down in that ruling that the right cannot be lightly interfered by condoning inordinate delay without there being any proper explanation of such delay even if involvement of public funds is there. I have considered the rival contentions made by learned counsel for the parties and have gone through the records of the case. The law regarding condonation of delay is clear where the appellant has shown sufficient grounds for condonation of delay in that case the Court should be liberal in condoning the delay. In authority Nabha Gaushala Committee's case (supra), M.K.Prasad's case (supra) and Roshan Lal's case (supra), it is held that where there is sufficient cause in that case the Court should be liberal in condoning the delay. In the present case according to additional affidavit, the appellant came to know about the passing of impugned judgment on 11.10.2006 although originally in the application under Section 5 of the Limitation Act it was pleaded that the appellant came to know about the passing of judgment on 01.08.2007. The original application was accompanied by affidavit of Pankaj Mohan-appellant wherein he has deposed that he came to know about the judgment on 01.08.2007. However, in the additional affidavit it is mentioned that he came to know about the judgment on 11.10.2006. So, in these circumstances, R.S.A NO.3016 OF 2007 (O & M) -8- Pankaj Mohan had filed two contradictory affidavits regarding the date of knowledge of passing of the judgment. The Hon'ble Apex Court in authority Pundlik Jalam Patil's case (supra) has held that where a party take a false stand to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood by condoning the delay. The appellant has not given any reasoning for not filing the appeal from 11.10.2006 to 10.09.2007 i.e for a period of about 333 days. No doubt the Court should be liberal in condoning the delay but where there is no sufficient cause or any reasoning given for condonation of delay in that case the Court should not be liberal in condoning the delay as valuable rights have accrued in favour of the opposite party. In Pundlik Jalam Patil's case (supra) the Hon'ble Apex Court has held that public interest parameters ought to be kept in mind by the court while exercising the discretion dealing with the application under Section 5 of the Limitation Act. Dragging the land losers to Court of law years after the termination of legal proceedings would not serve any public interest-the said rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay. In the present case, as discussed above, no reasoning has been given in the application or in the additional affidavit for condoning the delay of 333 days i.e from 11.10.2006 to 10.09.2007 and as such, the application under Section 5 of the R.S.A NO.3016 OF 2007 (O & M) -9- Limitation Act is without any merit and the same stands dismissed. Since the application for condonation of delay has been dismissed, consequently the appeal also stands dismissed being time barred. JULY 05, 2010 (K. C. PURI) shalini JUDGE