IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.857 of 2006 Date of decision:03.02.2009 Nirmal Singh ....Appellant versus Lakhbir Singh .....Respondent. CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA. Present: Mr. V.K. Jain, Senior Advocate with Mr. Prashant Vashisht, Advocate for the appellant. Mr. Arun Jain, Senior Advocate with Mr. Anupam Sharma, Advocate for the respondent. --- Vinod K. Sharma, J.(Oral) The defendant-appellant by way of this Regular Second Appeal, has challenged the judgments and decree dated 29.10.2004 and 31.12.2006 passed by the learned Courts below decreeing the suit, filed by the plaintiff/respondent for possession by way of specific performance of an agreement to sell. The plaintiff brought a suit for possession to enforce the agreement dated 7th December, 1999, vide which land measuring 15 Kanals-12 Marlas situated at Village Bir Amin, Tehsil Thanesar, District Kurukshetra, was agreed to be sold. The total sale consideration was fixed at Rs.6 lakhs, out of which, a sum of Rs.4 lakhs was paid as earnest money. The Sale Deed was agreed to be executed R.S.A. No.857 of 2006 - 2 - on or before 15th June, 2000. The plaintiff-respondent claimed that he was always ready and willing to perform his part of contract by executing the Sale Deed in terms of the agreement. The balance sale consideration was also offered along with the amount for purchase of stamp papers and registration charges. The plaintiff-respondent remained present in the office of Sub-Registrar, Thanesar, on 15th June, 2000, for getting the Sale Deed executed, but the defendant did not come present. The plaintiff- respondent got his attendance marked by moving an application before the Sub-Registrar, Thanesar. A legal notice dated 20th June, 2000 was also issued to the defendant, but despite receiving the same, the Sale Deed was not executed. The suit was contested by the defendant-appellant by taking a preliminary objection that plaintiff had no locus standi or cause of action to file the present suit, it was not properly valued for the purpose of Court fee and jurisdiction. The execution of agreement was denied. It was claimed that the disputed land was a Joint Hindu Family property and therefore, could not be sold without legal necessity. The plea was also raised that the appellant-defendant was not exclusive owner of the disputed land being a Joint Hindu Family property which could not be alienated without the consent and permission of all the members of the Joint Hindu Family. The receipt of earnest money was also denied. R.S.A. No.857 of 2006 - 3 - On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiff is entitled to a decree for possession by way of specific performance of the contract dated 07.12.1999? OPP. 2. Whether the plaintiff is entitled to a decree for permanent injunction restraining the defendant from alienating or creating any encumbrances over the suit land? OPP. 3. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff is estopped by his own act and conduct to file and maintain the present suit? OPD. 6. Whether the plaintiff has concealed the true and material facts from the Court? OPD. 7. Whether the plaintiff has no cause of action to file the present suit? OPD. 8. Whether the plaintiff has not affixed the proper Court Fee on the plaint? OPD. 9. Whether the suit property is Joint Hindu Family property? OPD 10. Whether the present suit is an abuse of process of law and Court? OPD. 11. Relief. The plaintiff examined four witnesses. The defendant- appellant failed to lead any evidence despite availing numerous opportunities. The evidence of the defendant-appellant was therefore closed by order on 18th April, 2003. A plea was taken by the learned counsel for the appellant-defendant that signatures of the defendant were available in the Criminal Appeal No.146 of 2001, titled as 'Surjit Singh etc. versus State of Haryana', therefore, said file be R.S.A. No.857 of 2006 - 4 - summoned. The learned trial Court was pleased to summon the file on 5th September, 2003. It is also pertinent to mention here that on 8th January, 2002, on an application moved by the plaintiff-respondent for production the defendant to give his specimen signatures, the following order was passed:- “Reply of the application for taking the specimen thumb impression not filed. Learned Counsel for the respondent states that the respondent-Nirmal Singh is away to some other country and he has no instruction to file any reply to this application. Heard in view of this facts stated in the application and the fact that the application has not been rebutted by the opposite side, the application in hand is hereby allowed. The defendant/respondent is directed to provide his specimen thumb impression. One witness namely, Raghbir Chand is present and his statement has been recorded. Now to come upon 17.04.2002. For remaining evidence of the plaintiff at his own responsibility.” The learned trial Court took up issues No.1 and 2 together, and on the basis of evidence brought on record, decided the same in favour of the plaintiff-respondent, by holding that the plaintiff- respondent was entitled to decree for possession by way of specific performance of contract dated 7th December, 1999. The learned Court held that the plaintiff was entitled to permanent injunction restraining the defendant-appellant from alienating or creating any encumbrances over the suit land. Issues No.3 to 8 and 10 were decided against the appellant- defendant having not been pressed. Issue No.9 was also decided against the appellant-defendant as no evidence was led in support of the plea that the land in dispute was Joint Hindu Family property. In view of the findings recorded, the suit was ordered to be decreed. R.S.A. No.857 of 2006 - 5 - The defendant-appellant preferred an appeal against the judgment and decree passed by the learned trial Court along with an application for leading additional evidence by invoking the provisions of Order 41 Rule 27 read with section 151 of the Code of Civil Procedure. An application under Section 5 of the Limitation Act was also moved for condoning the delay in filing the appeal. The application for additional evidence was opposed primarily on the plea that as the evidence of the appellant-defendant was ordered to be closed by order, therefore, could not be permitted to lead additional evidence. The learned Lower Appellate Court did not agree with the appellant-defendant that there was sufficient cause for condoning the delay. In recording the finding that the application for condonation of delay was liable to be rejected, the Court held that even if the plea raised in the application was accepted that the wife of the appellant came to know about the judgment and decree dated 29th October, 2004 on 10 th April, 2005, still the appeal was filed on 2nd May, 2005 i.e. after a period of 22 days, which did not stand explained. Thus, it was held that the delay in filing the application was not bona fide as no sufficient cause was shown. The application moved by the appellant-defendant under Section 5 of the Limitation Act was ordered to be dismissed. The appeal was dismissed as time barred. Mr. V.K.Jain, learned senior counsel, appearing on behalf of the appellant-defendant impugned the judgment and decree passed R.S.A. No.857 of 2006 - 6 - by the learned Lower Appellate Court primarily on the ground that the learned Appellate Court committed an error in law in dismissing the application moved under Section 5 of the Limitation Act. The contention of the learned senior counsel for the appellant was, that by way of order dated 8th January, 2002 reproduced above, it was proved on record that the appellant was away to England. It was for the said reason that he was not able to give his specimen signatures. The contention therefore is that, the negligence in this case was on the part of the learned counsel in not informing the defendant-appellant about the proceedings of the case, thus, sufficient cause was shown for condonation of delay. In support of this contention, the learned senior counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of 'Rafiq and another versus Munshilal and another, AIR 1981 Supreme Court 1400, wherein the Hon'ble Supreme Court was pleased to laid down that if an appeal is dismissed in default for misdemeanour or inaction of his counsel, the same deserves to be restored as the party cannot be allowed to suffer for the negligence of the counsel. However, the contention of the learned senior counsel deserves to be noticed to be rejected as in the present case, the appeal was not dismissed in default but on account of failure of appellant to make out sufficient cause for condoning the delay in filing the appeal after the date of knowledge. Learned senior counsel for the appellant-defendant by placing reliance on the judgment of the Hon'ble Supreme Court in the R.S.A. No.857 of 2006 - 7 - case of 'Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 Supreme Court 1353', contended that the application deserves to be allowed as the Hon'ble Supreme Court has laid down as under :- “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” The contention of the learned counsel for the appellant was that once the appellant paid a sum of Rs.28,000/- towards stamp duty to file an appeal, his bona fide stood proved, as it could not be said that he was to benefit by lodging an appeal late. It is also the contention of the learned senior counsel that by refusing to condone the delay, the meritorious matter has been thrown out at the very threshold and cause of justice has been defeated, R.S.A. No.857 of 2006 - 8 - as by condoning the delay, the learned lower Appellate Court could at best have decided the appeal on merit. It is also the contention of the learned senior counsel for the appellant-defendant that in the present case, it was proved on record that the appeal was filed within 22 days of knowledge and therefore, the learned lower Appellate Court was in error for dismissing the appeal by observing that every day's delay must be explained. The contention of the learned counsel for the appellant was that the expression that every day's delay must be applied in rational common sense and pragmatic manner. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of State of Nagaland V. Lipok AO and others, 2005(3) SCC 752, wherein the principles referred to above were reiterated. It may be noticed that the Hon'ble Supreme Court in the case of State of Nagaland v. Lipok AO and others (supra) has been pleased to lay down, that whether or not there is sufficient cause for condonation of delay is a question of fact depending upon the facts and circumstances of the particular case. In view of the law laid down by the Hon'ble Supreme Court, the findings of the learned lower Appellate Court on appreciation of evidence holding that, no sufficient cause for condonation of delay was shown, is to be treated as question of fact which cannot be challenged by invoking the provisions of Section 100 C.P.C. R.S.A. No.857 of 2006 - 9 - Even otherwise, there is no merit in the contention raised by the learned senior counsel for the appellant. The case prima facie has no merit. The defendant-appellant having filed written statement chose to go to England and did not lead any evidence in support of his contentions. There was hardly thus any merit in the appeal. It is not a case where the defendant-appellant was not served or he was in England when the suit was filed rather he chose to go to England during the pendency of suit. It can therefore safely be said that there was no negligence on the part of the counsel, as contended. It is true that the liberal approach has to be taken for condoning the delay in filing the appeal but it does not mean that the provisions of Limitation Act have to be said 'good-bye' and the delay has to be condoned even if the party is negligent and fails to disclose sufficient cause for condoning the delay. The appellant-defendant was to show sufficient cause for condonation of delay. The plea that he had no knowledge of the judgment and decree passed was not bona fide, as he was served, and chose to go to England. It was also the case of the appellant-defendant that he came to know about the judgment and decree on 10th April, 2005. However, no explanation was forthcoming for delay of 22 days in filing the appeal. It is well settled law that once the limitation starts running, it cannot be stopped, and therefore, the minimum requirement was that the appellant-defendant was to show as to how the period of 22 days was spent in filing the appeal. The Limitation Act provides that each day's delay has to be explained. R.S.A. No.857 of 2006 - 10 - The learned lower Appellate Court was, justified in dismissing the appeal as time barred. This Regular Second Appeal does not raise any substantial question of law for consideration by this Court. No merit. Dismissed. (VINOD K. SHARMA) JUDGE 03.02.2009 sanjeev