CR No.6351 of 2008 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No.6351 of 2008 (O&M) Date of Decision: 9.4.2010 Karam Singh ...Petitioner Versus Dharm Singh and others .....Respondents 1.Whether Reporter of local papers may be allowed to see the judgment- Yes/No 2.To be referred to the Reporters or not- Yes/No 3. Whether judgment should be reported in the digest-Yes/No Coram: Hon'ble Mr. Justice L.N. Mittal Present: Mr. J.S. Brar, Advocate for for the petitioner. Mr. S.K. Singla, Advocate for the respondent No.1. …... L.N. Mittal, J. (Oral) CM No.8719-CII of 2010 Application is allowed and Annexure R-1 and R-2 are taken on record subject to all exceptions. CR No.6351 of 2008 Defendant No.2-Karam Singh has filed this Revision Petition under Article 227 of the Constitution of India assailing order dated 29.8.2008 (Annexure P-1) passed by learned Additional District Judge, Moga thereby dismissing petitioner’s application for condonation of delay in filing first appeal. Dharam Singh respondent No.1 filed suit against petitioner and respondents No.2, 3 and Jarnail Singh. The said suit was once CR No.6351 of 2008 (O&M) 2 dismissed in default but was restored in the presence of counsel for the petitioner who was defendant No.2 in the suit. Thereafter, petitioner was being represented by his counsel in the suit for many dates of hearing. Ultimately on 30.8.2006, none appeared for defendant No.2 in the trial Court and he was proceeded ex parte. Thereafter, the suit was decreed by the trial Court vide judgment and decree dated 28.11.2006 (Annexures R-1 and R-2). Defendant No.2 preferred first appeal before the Lower Appellate Court against the judgment and decree of trial Court. Along with the appeal, petitioner moved application for condonation of delay in filing the first appeal alleging that he is suffering from paralysis and walks with the help of crutches. He was not informed by his counsel in the trial Court that on 30.8.2006, he had been proceeded ex parte and that the suit had been decreed ex parte on 28.11.2006. Petitioner came to know of the judgment and decree dated 28.11.2006 when the Patwari informed the petitioner on 4.5.2007 about the sanction of mutation on the basis of said judgment and decree. Thereafter first appeal was preferred by the petitioner on 22.5.2007. Respondent No.1 opposed the aforesaid application and inter alia pleaded that defendant No.2 has disposed of his entire land during the pendency of case and was left with no interest in the suit property and the appeal with application for condonation of delay had been filed at the instance of purchaser who had also filed separate appeal and application for condonation of delay in filing that appeal. Various other pleas were also raised. Learned Additional District Judge vide impugned order dated 29.8.2008 dismissed the petitioner’s application for condonation of delay in filing the appeal. Feeling aggrieved, defendant No.2 has filed the instant revision petition. I have heard learned counsel for the parties and perused CR No.6351 of 2008 (O&M) 3 the case file. Learned counsel for the petitioner vehemently argued that admittedly the petitioner is suffering from disability. In view thereof, the petitioner could not remain in constant touch with his counsel in the trial Court and there is sufficient ground for condoning the delay in filing the first appeal. On the other hand, learned counsel for respondent No.1 contended that since the petitioner sold his entire interest in the suit land, he intentionally did not appear in the suit and did not file appeal within limitation. It was also contended that petitioner admitted in the witness-box that he used to contact his counsel in the trial Court. It was also contended that appeal preferred by purchasers Dharam Singh and others was also dismissed as time barred and revision petition filed by them has also been dismissed. Learned counsel for the petitioner pointed out that Ranjit Singh Patwari Halqa was examined as PW-3, and he stated that petitioner was left with some share in the land after sale of some share. I have carefully considered the contentions of learned counsel for the parties. The parties to the suit are siblings i.e. three brothers and two sisters. Courts adopt liberal approach in the matter of condonation of delay. The petitioner is suffering from some disability. The petitioner is prima facie left with some share in the suit land and it is for this reason that he filed first appeal and has filed instant revision petition. The delay in filing the appeal is less than five months. Accordingly I am of the considered opinion that the ends of justice would be served if delay in filing the first appeal is condoned on payment of cost. Plaintiff respondent No.1 can be suitably compensated by way of cost. For the reasons recorded hereinabove, the Revision CR No.6351 of 2008 (O&M) 4 Petition is allowed. Impugned order dated 29.8.2008 (Annexure P-1) passed by learned Additional District Judge, Moga is set aside and delay in filing the first appeal by the petitioner is condoned on payment of Rs.10,000/- as cost precedent, payable to plaintiff-respondent No.1 only. Parties are directed to appear before the Lower Appellate Court on 10.5.2010. (L.N. MITTAL) JUDGE 9.4.2010 sharmila