C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 In the High Court for the States of Punjab and Haryana at Chandigarh … C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 Date of decision: November 18,2008 Rajinder Raghubir Sharan Sharma ..Applicant- Appellant. Versus Bala Kumari Sharma and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Jai Bhagwan,Advocate for the Applicant-Appellant. Mr.Jatinder Singla, Advocate for the respondents. .. Rakesh Kumar Garg,J. This is an application under Section 5 of the Limitation Act for condoning the delay of 899 days in filing the appeal in this Court whereby the appellant has challenged the judgment and decree dated 15.9.2003 passed by the Additional District Judge, Sangrur. In the application for condonation of delay, it has been averred that the applicant/appellant filed a suit for declaration and possession of a house situated at Sangrur against the respondents, which was decreed by the court of Shri G.C. Garg, PCS, Civil Judge(Senior Division) vide his judgment and decree dated 30.5.2002. It is the case of the applicant/appellant that he belongs to Kaithal in Haryana State which is at a distance of 150 Kms. From Sangrur where the property in dispute is situated. As per the averments made in the application after passing of the decree by the trial Court on 30.5.2002, Shri Kali Ram, Advocate, counsel for the applicant informed him and also assured that he will get a copy of the judgment and decree dated 30.5.2002 and in fact the said judgment and decree was obtained by the said counsel through his Clerk Shri Birbal Dass. On getting this C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 information, the applicant requested his counsel at Sangrur that he will not be able to see him personally in near future and requested him to watch the interest of the applicant-appellant in subsequent proceedings and the said counsel accepted his request and applicant was asked to come to Sangrur when informed again. Thereafter, the applicant did not come to Sangrur personally, honestly believing that in case of need he would be informed by his counsel. It is also mentioned in the application that applicant received some papers from the court but he never bothered to care to read those papers believing that his counsel must be knowing about the same and that he would go only when informed by his counsel. It is further stated in the application that when the applicant did not get any information from his counsel, he came to Sangrur on 11.3.2006 and sought information from his counsel regarding proceedings of his case. His Advocate informed him after inquiring from the court that appeal against the judgment and decree of the trial Court dated 30.5.2002 was accepted by the lower Appellate Court on 15.9.2003 and the applicant was proceeded against ex. Parte in that appeal. Thereafter, the applicant procured the certified copy of the judgment and decree of the lower Appellate Court through the Clerk of Shri Kali Ram, Advocate and was also handed over certified copy of judgment of the trial Court required for filing this appeal in this court. The certified copies were prepared on 24.3.2006. Thereafter, the applicant/appellant contacted the present counsel for filing the appeal in this Court and appeal was filed on 30.5.2006. Thus, the time from 24.3.2006 up to 30.5.2006 was taken to complete the record to prepare the appeal etc. On the basis of these facts, it has been pleaded that there were sufficient reasons for condoning the delay in filing the present appeal as the applicant has explained the reasons which caused the delay of 899 days in filing the appeal in the High Court. The said application has been contested by the respondents by filing reply stating therein that there are no sufficient reasons for condoning the C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 delay and the applicant was careless and negligent as is clear from his act and conduct and the application is liable to be dismissed. It has been further stated in the reply that distance of Sangrur from Kaithal is only about 85 to 90 kms. and a frequent bus service after every half an hour is available. The applicant was served through the process of the court on 7.12.2002 as after getting the copy of the notice in appeal, he put his signatures at the back of the summons in token of receipt/acceptance of notice of appeal in the presence of witness and yet he chooses not to appear in the court in response to this notice. I have heard learned counsel for the parties and perused the pleadings of the parties. From the averments of the applicant itself, it is the case of applicant himself that he received some papers from the court but he did not bother to read the same as he was honestly believing that he will be informed by his counsel Shri Kali Ram, Advocate and will go only when he is required at Sangrur. However, this explanation is without any merit. It is no where mentioned by the applicant that he had engaged Kali Ram, Advocate to pursue his case if any appeal is filed against him against the judgment and decree dated 30.5.2002 and even if it is to be presumed for the sake of argument that applicant had instructed his counsel in the trial Court at Sangrur to watch the subsequent proceedings then his counsel in the trial Court must have appeared on his behalf and non appearance of the appellant or his counsel shows that the applicant has never instructed or authorized his counsel as alleged. Even otherwise, once the applicant has received notice/information regarding institution of appeal through the process and court, the question of getting any other information from the counsel as alleged does not arise at all. From the case set up by the applicant himself, it is clearly established that he was careless and willfully negligent in pursuing his case. The applicant has not assigned any reason or circumstance which was beyond his control or which prevented him from appearing in the court in pursuance of the summons issued by the appellate Court. A perusal of the certified copies of the judgment and decrees of the trial Court shows that the said copies were applied on 21.3.2006 C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 through Shri Birbal Dass who is alleged to be Clerk of Shri Kali Ram Advocate and the same was supplied on 24.3.2006. The certified copy of the judgment and decree of the lower Appellate Court had been applied on 11.3.2006 and the same was supplied on 18.3.2006, whereas the stand of the applicant is that on 30.5.2002 when trial Court passed decree in his favour, a copy of the same was secured by Shri Kali Ram, Advocate Sangrur through his Clerk Shri Birbal Dass. It is also the case of the applicant that on 11.3.2006 when he went to Sangrur, he was handed over the certified copies of the judgment and decrees of the trial Court by the Clerk of Shri Kali Ram, Advocate and he also procured the certified copies of the judgment and decree of the first Appellate Court . From the above, it is clear that the stand taken by the applicant is contradictory to the official record. As per the stand taken by him, certified copy of the trial court judgment and decree was obtained by the Clerk of the counsel in the year 2002 itself and he has procured certified copy of the judgment and decree of the lower Appellate Court in March 2006 whereas the certified copies of the judgment and decrees of the trial Court as well as of the lower Appellate Court attached with the appeal show that both the copies have been applied in March,2006. This fact alone belies the stand taken by the applicant. Moreover, the applicant has filed a totally vague application as he has not given any details on what date and time, he contacted his alleged counsel. The applicant has not filed any affidavit of Shri Kali Ram, Advocate or his Clerk, Birbal Dass to prove his case as alleged. From the facts, it is clear that the applicant has failed to prove that he had sufficient cause which prevented him from filing the present appeal. There is absolutely no justification given by him for condoning such a huge delay of 899 days in filing this appeal. No doubt, words “sufficient cause” must receive a liberal construction so as to advance substantial justice but , the provisions of Section 5 of the Limitation Act are to be applied liberally only in case where no negligence or in action or want of bonafide is imputable to the appellant. The law of limitation cannot be construed so liberally that a substantive right of opposite party is taken C.M.No.10188-C of 2006 and RSA No. 3969 of 2006 away so lightly that it would give an impression as if law of limitation does not exist. There has to be some sufficient cause shown by the applicant for condonation of delay. The plea that the counsel for the appellant in the trial Court did not inform him regarding decision of the appeal, cannot be accepted as possibly no evidence in support of such plea has been produced on record. Though the expression sufficient ground is not possible to be defined but there has to be some sufficient cause shown for condoning the delay. Thus each case has to be decided on its own facts and circumstances. The applicant must give some explanation of why he did not pursue his remedy. In a case even a feeble explanation may be accepted owing to the peculiar circumstances to that particular case and in other, the court may refuse to accept the explanation on the ground that it is not satisfactory but to say that no explanation is necessary is entirely wrong proposition of law. In each case, the facts and circumstances have to be properly weighed and assessed and then discretion according to well recognized principle has to be exercised. In the present case, there is absolutely no explanation as to what prevented the appellant from filing the appeal after such a huge delay of 899 days. The explanation given by the applicant that he was not informed by his counsel as alleged cannot be accepted in the facts and circumstances of the case. For the reasons recorded above, the application for condoning the delay of 899 days in filing the present appeal is dismissed. Since the application for condonation of delay has been dismissed, the appeal is also held to be time barred and the same is dismissed. November 18, 2008 (RAKESH KUMAR GARG) nk JUDGE