IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 42 of 2011. Date of decision: 23.5.2011. Rattan Lal & Ors. …Petitioners. Versus Asha Kumari & Ors. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Vivek Thakur, Advocate. For the respondents: Mr. Ashwani K. Sharma, Advocate. Deepak Gupta, J. (Oral) 1. The petitioners by means of this petition has challenged the order dated 4.1.2010 whereby the application filed by the petitioners for condoning the delay in filing the appeal has been rejected. 2. Briefly stated, the facts of the case are that the respondents (hereinafter referred to as the plaintiffs) are the widow and minor children of late Shri Hans Raj (brother of Rattan Lal). They filed a suit against Shri Hans Raj, Rattan Lal, Smt. Kalasi Devi mother of Hans Raj and Smt. Vidya Devi wife of Rattan Lal to the effect that the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. plaintiffs alongwith defendant No.1 constituted a joint : 2 : Hindu family and, therefore, they are share-holders in the ancestral property of Shri Hans Raj. Consequential reliefs were also prayed. 3. The suit was contested and written statement was filed by all the respondents. It appears that Shri Hans Raj died during the pendency of the case and thereafter his name was deleted, since his legal representatives were either the plaintiffs or his mother Smt. Kalasi Devi all of whom were already on record. After some time none appeared for the defendants and they were proceeded against ex-parte and an ex-parte decree was passed in favour of the plaintiffs and against the defendants on 9.6.2003. 4. An appeal by the defendants was filed against the aforesaid judgment and decree on 23.4.2005 and, therefore, alongwith the appeal which was patently time barred an application for condonation of delay was filed. 5. In this application it was submitted that Shri Hans Raj had told his mother and brothers that the dispute was between him and his wife and they need not appear in the case and he would contest the case on their behalf. During the pendency of the suit, Shri Hans Raj died but the mother was not arrayed as his legal representative to contest the claim. On this ground alone condonation of delay was sought. : 3 : 6. The Learned Lower Appellate Court framed issues and recorded evidence on the application of condonation of delay. Sh. Rattan Lal appellant No.1 in his affidavit stated that he had not received the copy of the plaint and was told by his brother that he need not appear in the case. However, in the cross-examination he admitted that he had received the copy of the plaint alongwith the summons of the suit. He also disclosed that he had engaged Shri R.L. Bhardwaj, Advocate on behalf of all the defendants after the death of Hans Raj. According to him, Shri R.L. Bhardwaj was a counsel for his mother Kalasi Devi also. He further stated that he used to visit the Court and appeared in the Court till its disposal in June, 2003. 7. At the time of hearing of this petition, Shri Vivek Thakur, learned counsel for the petitioners strenuously argued that the case had only been fixed for proper orders and without notice to the petitioners- defendants they were proceeded against ex-parte. This was not a ground taken before the learned Court below and the petitioner cannot be permitted to raise this ground here. Furthermore, the petitioner Rattan Lal has admitted that he used to appear in the suit till its disposal and was appearing in the Court on the days when the Presiding Officer was on leave. It is also obvious that the case was ripe for arguments in the year 1998 and arguments were : 4 : heard and re-heard from 1998 till 2003. Shri R.L. Bhardwaj, was engaged as a counsel on behalf of the defendants other than Shri Hans Raj after his death. Shri R.L. Bhardwaj also appeared till 25.5.2002 but did not appear thereafter from 25.5.2002 till 9.6.2002. For more than one year, the matter was being taken up by the Court. It was the duty of the defendants-petitioners to have found out what was the date in the case. It cannot be believed that for one year they made no effort to find out what had happened to the case. The petitioners themselves have been grossly negligent in pursuing the case and the learned Lower Appellate Court was fully justified in rejecting the application for condonation of delay and, therefore, I find no merit in the petition which is accordingly rejected. No costs. (Deepak Gupta) Judge May 23, 2011. (Krn Guleria)