RSA No.183 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.183 of 2010 (O&M) DATE OF DECISION: 14.10.2010 **** Haryana Urban Development Authority and another . . . . Appellants Vs. Harbir Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Sidharth Batra, Advocate for the appellants. Mr.Rakesh Nagpal, Advocate for the respondent. **** RAKESH KUMAR JAIN J. CM No.631-C-2010 and RSA No.183 of 2010 (O&M) This is an application filed under Section 5 of the Limitation Act, 1963 (for short ‘the Act’) read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for condonation of delay of 1020 days in filing of the appeal. In brief, plaintiff/respondent filed the suit for mandatory injunction which was decreed by the learned trial Court vide its judgment and decree dated 18.1.2006. Defendants No.1 and 3 challenged the judgment and decree of the trial Court by way of appeal which was dismissed by the learned District Judge, Kaithal on 12.8.2006. Aggrieved against the judgment and decree of the Courts below, present appeal was filed by the applicants/appellants in this Court on 26.08.2009. On scrutiny, the Registry of this Court found the appeal to be barred by 1020 days. The appeal was returned to the applicants/appellants to be refiled after removing objections raised by the Registry. The appeal was then re-filed on 22.12.2009. It was again returned with objection and was ultimately re- filed on 2.1.2010. Thus, along with the aforesaid application for condonation of delay in filing there is another application filed by the RSA No.183 of 2010 (O&M) -2- applicants/appellants namely, CM No.630-C-2010 for condoning the delay of 107 days in re-filing of the appeal. Notice in both the applications was issued by this Court on 22.01.2010. Reply thereto has been filed. According to the averments made in the application for condonation of delay, the certified copy of the judgment and decree of the First Appellate Court dated 12.8.2006 was submitted by the counsel for the Haryana Urban Development Authority (for short ‘HUDA’) in the Estate Office on 25.8.2006 along with his letter but no action was taken by the Estate Officer, HUDA, Kaithal. Rather it is alleged that certified copy of the judgement and decree of the learned First Appellate Court was not found in the records of HUDA. It is alleged that disciplinary action against the defaulting officials are being taken separately. It is further averred that the plaintiff had filed Execution No.55 of 2007 in which notice was issued on 3.10.2008 and from then onwards, the Estate Officer, HUDA, Kaithal started pursuing the case as according to the averments made in the application vide memo No.4939 dated 27.11.2008, Estate Officer, HUDA, Kaithal sent the case to the Legal Officer, HUDA, Panchkula, who referred it to Chief Administrator, HUDA, Panchkula vide memo No.DDA-P- 08/19606 dated 24.12.2008 for the purpose of filing Civil Revision. When the matter was brought to the notice of the lawyer in the High Court on 3.2.2009 for the purpose of filing revision, he enquired about the fate of the first appeal. Then, it is averred that the estate Officer inquired from the local Advocate at Kaithal and intimated the Chief Administrator, HUDA, Panchkula vide Memo No.4771 dated 12.8.2009 about the dismissal of the appeal by the First Appellate Court on 12.8.2006. Thereafter, the matter was re-examined in the office of the Chief Administrator, HUDA, Panchkula where it was decided to file Regular Second Appeal on 16.8.2009. In the mean time certified copy was applied on 10.8.2009 which was prepared on 11.8.2009, collected on 18.8.2009 and delivered to the Advocate in the High Court on 19.8.2009 for the purpose of filing Regular Second Appeal. In this background, it is averred in para No.6 of the application that “due to the long official procedure regarding the opinion for filing the RSA and the collection of records from the Estate Officer, HUDA, Kaithal and the Chief Administrator, HUDA, Panchkula for filing the RSA against the order of the RSA No.183 of 2010 (O&M) -3- Ld. Court of A.D.J., Kaithal took time. It is therefore, submitted that the delay caused in filing the instant RSA is due to the reasons explained above and the delay caused is neither intentional nor deliberate.” In reply to the application, learned counsel for the respondent has urged that there is no explanation in the application for not filing the appeal within the period of limitation. If the certified copy, as alleged in para No.3 of the application, was supplied to the office of the Estate Officer, HUDA on 25.8.2006 then why the matter was not pursued for the purpose of filing Regular Second Appeal and why the applicants/appellants started pursuing the application after the receipt of orders in execution application in 2008. In have heard both the learned counsel for the parties and perused the record. From the perusal of the record, it is apparent that there is no explanation in the application for long silence on the part of the applicants/appellants from 2006 to 2008. It is really surprising that the Estate Officer, HUDA, Kaithal was not even bothered to enquire about the result of the appeal even if the certified copy of the judgment and decree dated 12.8.2006 was allegedly misplaced. The Estate Officer, HUDA, Kaithal was expected to pursue the litigation if they were really aggrieved against the judgment and decree of the Courts below but it appears that either the Estate Officer, HUDA, Kaithal or some officials were hobnobbing with the plaintiff as a result of which they did not take any action till the execution was filed by the plaintiff. There is a delay at every stage inasmuch as the appeal filed before this Court has been re-filed with delay for which there is no explanation. Although, it has been mentioned in para No.3 of the application that disciplinary action against the officials is being taken separately but it is not clear as to what action has been taken. Thus, while dismissing the application, finding it to be without any merit and consequently dismissing the appeal, the Chief Secretary, Haryana is directed to hold an enquiry in this matter either herself or through some other officer to find out the erring officials who have caused loss to the HUDA or are contumaciously negligent in the discharge of their official duties. The enquiry report as well as action taken thereupon be submitted RSA No.183 of 2010 (O&M) -4- to this Court within a period of six months after the receipt of certified copy of this order. Registry is directed to list this appeal before the Court for the purpose of appraisal of the enquiry and the action taken thereupon. (RAKESH KUMAR JAIN) October 14, 2010 JUDGE Vivek