R.S.A. No. 622 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 622 of 2009 (O&M) Date of decision: 05.02.2009 Punjab School Education Board ....Appellant Versus Rachhpal Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. B.M. Singh, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 1756-C of 2009 This application under Section 5 of the Limitation Act is for condoning the delay of 22 days in filing the appeal. It has been averred in the application that the appeal was prepared and handed over to the counsel for being filed in time, but it was due to vacation and non-availability of the counsel in station that the appeal could not be filed in time. Thus, there occurred a delay of 22 days. The application is supported by an affidavit. The averments make out a sufficient cause for condonation of delay. Consequently, the R.S.A. No. 622 of 2009 (O&M) -2- C.M. is allowed and the delay of 22 days in filing the appeal is condoned. R.S.A. No. 622 of 2009 This regular second appeal is directed against the judgments and decree dated 7.12.2004 and 2.9.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for damages stands decreed. The plaintiff/respondent appeared in 10+2 examination held by the appellant in March1998 under Roll No. 2409881. The plaintiff/respondent was declared to have passed the examination, but the appellant failed to issue him detailed marks card, and the certificate declaring him as successful candidate, in examination in time. The case set up by the plaintiff/respondent was, that in spite of several personal requests and legal notice having been served, the detailed marks card and the certificate was not issued. The plaintiff/respondent had to file civil writ petition No. 2787 of 2000. It was only after this Court issued notice, that the appellant issued detailed marks card and the certificate. The certificate was issued on 7.4.2000 i.e. almost two years after passing of the examination. The plaintiff claimed damages on the plea that he lost two years of his career, as he could not take admission in various courses like JBT etc. It was further the case of the plaintiff that he had to sit idle at home for a period of two years. The claim of Rs.5,00,000/- (Rupees five lac only) by way of damages was raised. He also claimed, to have suffered loss of Rs.20,000/- (Rupees twenty thousand only) for fighting litigation. R.S.A. No. 622 of 2009 (O&M) -3- On notice having been issued, the defendant/appellant contested the suit by taking preliminary objections that plaintiff had no locus standi to file the suit. On merits of the suit plea was raised, that the plaintiff deposited the requisite fee on 24.2.1999 and 20.1.2000 vide reciept No. 033392 and 464195, but he failed to submit the registration number, which was necessary for issuance of detailed card. It was thus pleaded that the delay in release of detailed mark card, and the certificate was due to inaction on the part of the plaintiff. Plea was also raised that record upto the year 1996 qua registration had been destroyed in the year 1998. The factum of the writ having been filed was admitted, which was said to have been dismissed on the statement of senior legal adviser, and also in view of the fact that the detailed mark card and certificate, as demanded, stood issued. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - “1. Whether the defendant is negligent in delaying the issuing of certificate 10+2 examination to the plaintiff? OPP 2. If issue No. 1 is proved, whether the plaintiff is entitled to recover damages from the defendant and if so to what extent? OPP 3. Whether the plaintiff has got no locus standi to file the present suit? 4. Whether the plaintiff is barred from filing the suit due to his own act and conduct? OPD 5. Whether the suit is not maintainable as the Court fee has not been affixed? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief.” R.S.A. No. 622 of 2009 (O&M) -4- On appreciation of evidence, the learned trial Court held that the defendant/appellant was negligent for delay in issuance of certificate of 10+2 examination to the plaintiff. However, the learned trial Court held that the plaintiff was entitled to only Rs.25,000/- (Rupees twenty five thousand only) as damages, as it was said to be reasonable compensation for the negligence. Issue Nos. 3 to 6 were not pressed and thus decided against the appellant/defendant. Consequently, the suit stands decreed for a sum of Rs.25,000/- (Rupees twenty five thousand only). The learned counsel for the appellant contends that the finding of the learned trial Court qua negligence is perverse, in view of the finding of fact recorded that registration number was not given by the plaintiff in the application. This plea of the learned counsel for the appellant cannot be accepted, the learned trial Court rightly held appellant to be negligent as the plaintiff, at no stage, was apprised of the fact that his detailed mark card was not being issued due to incomplete registration number. The marks sheet and certificate was immediately issued after plaintiff filed writ and notice was issued. The appeal filed by the appellant stands dismissed being time barred. The stand taken for condonation was that delay had occurred due to administrative reasons, as the procedure to file the appeal by appellant is cumbersome and number of sanctions, are required to be taken. However, the learned lower appellate Court rejected this plea R.S.A. No. 622 of 2009 (O&M) -5- by observing as under: - “Not only this, in para 2 (VI) of the application it has been stated that the competent authority appended its signature on the memorandum of the appeal on 9.2.2005 but contrary to this the memorandum of appeal carries two dates i.e. 19.1.2005 and 3.5.2005 without indicating as to who signed the memorandum of appeal on which of the two dates. The affidavit, Ex. A.1., placed on record in support of the application compounds the matter further as in para 2 (vi) thereof it has been stated on oath by the sole witness of the applicant, namely, Varinder Madan, that the memorandum of appeal was signed by the competent authority on 13.4.2005. The melee has not been attempted to be explained.” The learned counsel for the appellant contends that this finding of the learned lower appellate Court cannot be sustained, as after the signing of the appeal, the sanction for Court fee was required and unxplained time was spent in that process. Thereafter the appeal was filed immediately. However, this plea cannot be accepted. Firstly, for the reason that whether the sufficient cause for condonation of delay exists is a question of fact. Once on appreciation of evidence brought on record, the learned lower appellate Court has held that no sufficient cause is made out for condonation of delay, this Court cannot reappraise the evidence to come to a different conclusion. The learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in AIR 1996 Supreme Court 1623 to contend that there should be liberal approach in condoning the delay, as by condonation of delay the parties get right to have their matter adjudicated on merits. There can be no dispute with this proposition of law. However, the liberal approach cannot be extended to negate the R.S.A. No. 622 of 2009 (O&M) -6- provisions of the Limitation Act. Once it is proved on record that the delay is on account of sheer negligence, as held by the learned lower appellate Court, the application for condonation of delay could not be said to have been wrongly dismissed. The learned lower appellate Court thus was justified in dismissing the appeal as time barred. The appeal raises no substantial question of law for consideration by this Court. No merit. Dismissed. (Vinod K. Sharma) Judge February 05, 2009 R.S.