Civil Revision No. 4939 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4939 of 2011 (O&M) Date of Decision: October 20th, 2011 Santokh Singh .... Petitioner Versus Didar Singh .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Malkeet Singh, Advocate, for the petitioner. Mr. Sarju Puri, Advocate, for the caveator-respondent. VIJENDER SINGH MALIK, J. Petitioner, Santokh Singh, is the defendant against whom Didar Singh filed a suit for possession by way of specific performance of the agreement of sale dated 28.8.2002. He had also sought relief of recovery of Rs. 5.00 lakhs in the alternative. After trial, the suit came to be decided vide judgment and decree dated 6.5.2008 passed by learned Additional Civil Judge (Senior Division), Nawanshahar, who had decreed the suit for specific performance of agreement of sale. The defendant, Santokh Singh became late in preferring Civil Revision No. 4939 of 2011 2 .. appeal against the said judgment and so, he filed alongwith his grounds of appeal, an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The said application has been dismissed by learned Additional District Judge, Shaheed Bhagat Singh Nagar, vide order dated 24.5.2011. Learned Additional District Judge, Shaheed Bhagat Singh Nagar, could not find any sufficient reason with the appellant for having not filed the appeal within limitation. Therefore, he declined to condone the delay of 284 days in filing the appeal and dismissed the application. Consequently, the appeal filed by the appellant was also dismissed being barred by limitation. It is the order dated 24.5.2011 passed by learned Additional District Judge, SBS Nagar, which is challenged by way of this revision petition, brought under the provisions of Article 227 of the Constitution of India. The claim made by the appellant-petitioner for condoning the delay in his application is as under : The appellant was not feeling well since 4.12.2006 on account of an accident, in which he suffered head injury. He remained under treatment. His son, who had come from Italy was also on bed being a patient of polio and the counsel could not be contacted. The appellant came to know of the judgment and decree dated 6.5.2008 passed against him by learned Additional Civil Judge (Senior Division), Nawanshahar on 14.2.2009 when his wife disclosed to him the fact of pendency of execution application Civil Revision No. 4939 of 2011 3 .. with regard to the said decree before the trial court. The appellant then appeared before the executing court on 21.2.2009 and contacted his counsel, who had applied for certified copy of judgment and decree on 5.3.2009. The same was supplied to him on 19.3.2009 and thereafter, the appeal was filed on 30.3.2009. Claiming that the delay in filing the appeal is on account of circumstances beyond the control of the appellant and that there was sufficient ground for condonation of delay in filing the appeal, the prayer has been made. The application has been opposed by the plaintiff-decree holder, (respondent before me). He has averred that the medical certificate issued by Gurmit Hospital only shows that the appellant was visiting the hospital regularly, which is just 2 Kms. away from the court complex. According to him, the applicant is silent about the delay in filing the appeal from 14.2.2009 to 5.3.2009 and from 19.3.2009 to 30.3.2009. In these circumstances, it is claimed that the delay in filing the appeal cannot be condoned. On the pleadings of the parties, the following issues were framed. 1 Whether there is sufficient ground to condone the delay in filing the appeal? OPA 2. Relief. Parties led their respective evidence. Hearing learned counsel for the parties, learned first appellate court found the Civil Revision No. 4939 of 2011 4 .. appellant-petitioner to have failed to prove sufficient ground for not filing the appeal within limitation. Consequently, deciding the only issue against the appellant, he dismissed the application as well as the appeal. Aggrieved by the aforesaid order, the present revision petition has been filed. I have heard Mr. Malkeet Singh, learned counsel for the petitioner and Mr. Sarju Puri, learned counsel for the caveator- respondent. I have gone through the record carefully. Learned counsel for the petitioner has submitted that the petitioner came to know of the passing of judgment and decree against him on 14.2.2009 when notice regarding execution was received. According to him, the application was filed by him for obtaining copy on 5.3.2009 and after obtaining copy, he filed the appeal alongwith the application under section 5 of the Limitation Act. Learned counsel for the petitioner has further submitted that the appellant had met with an accident on 4.12.2006 and he remained unwell. According to him, the counsel representing him in the suit did not inform him of the decision of the suit. According to him, to prove sufficient ground for his failure to present the appeal within limitation, he himself appeared as AW1 and had examined two doctors in support of his case. He has submitted that the delay in filing the appeal should have been condoned Civil Revision No. 4939 of 2011 5 .. particularly because by filing the appeal late, he gained nothing. According to him, no prejudice is going to be caused to the other side, if the delay was condoned. He has submitted that in almost all cases, where delay is sought to be condoned, the party seeking the same is negligent in one way or the other and for that reason, the approach should be liberal in condoning the delay. He has supported himself by a number of decisions of this court as well as Hon`ble Supreme Court of India wherein it is laid down that the approach in such cases should be liberal. The first case cited before me is reported as Jagjit Singh Puri Vs. Hari dev Bansal, Proprietor M/s Ashoka Tin Works, Mansa Road, Bathinda, 2008 (2) R.C.R. (Civil) 192. There was delay of 345 days in filing the appeal. It was observed that there would be some lapse on the part of the party, applying for condonation of delay. Observing further that the petitioner gains nothing by filing the appeal beyond the period of limitation, the delay was condoned subject to payment of Rs.5,000/- as costs. The next case cited by learned counsel for the petitioner is N.Balkrishan Vs. M. Krishnamurthy 1999(1) PLR 462. It has been held therein that the length of delay is not material and acceptability of the explanation is the only criterion for condonation of delay. It has been further laid down in this decision that once the court accepts the explanation as sufficient, the condonation of delay is result of positive exercise of discretion and normally Civil Revision No. 4939 of 2011 6 .. superior court should not disturb the exercise of such discretion unless the same was held untenable on the grounds of arbitrariness or perversity. It has also been laid down that in every case of delay, there can be some lapse on the part of the litigant concerned, which is not enough to turn down the plea and shut down the door against him. The next case cited before me is State of Nagaland Vs. Lipok AO & Ors 2005(3) SCC 752. The law laid down by Hon`ble Supreme Court with regard to condonation of delay in filing the appeal has been summed up in this decision as under:- “1). Whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. 2). Courts should be liberal in condoning delay – Expression “every day's delay must be explained” does not mean that a pedantic approach should be made. 3). Unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 4). Mistake of counsel by itself is always sufficient cause for condonation of delay – It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. 5). If the refusal to condone the delay results in Civil Revision No. 4939 of 2011 7 .. grave miscarriage of justice, it would be a ground to condone the delay. 6). Expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which sub-serves the ends of justice – that being the life-purposes for the existence of the institution of courts. 7). Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay.” The last case cited before me is Indian Oil Corporation Ltd. and others Vs. Subrata Borch Chowlek, Etc. 2011 (1) R.S.J. 177. There was delay of 59 days in this case in filing the appeal before the Division Bench of the High Court. The delay was pleaded to be unintentional and bona fide. Sufficient cause was made out for condonation of delay. Learned counsel for the respondent, on the other hand, has submitted that counsel for the applicant in the trial court was not required to inform the party of the result of the litigation. According to him, the main plea of the petitioner for condonation of delay is that he met with an accident on 4.12.2006 and he could not contact his counsel. According to him, the evidence on the record coming in the statement of Dr. Mangat Singh (AW2) is that the appellant never remained admitted in the hospital and that he had visited the hospital 2 or 3 times and was given conservative treatment. According to him, this evidence does not provide Civil Revision No. 4939 of 2011 8 .. sufficient ground for condonation of delay particularly when he was visiting the hospital and the courts were situated just 2 Kms. away therefrom. Learned counsel for the respondent has further submitted that in the name of liberal approach, it cannot be said that person filing the appeal after the expiry of period of limitation is not to prove any sufficient ground for condonation of delay. He has submitted that by way of liberal approach, it is only meant that each day's delay is not to be accounted for by the appellant. According to him, it is a case where the petitioner had no defence. He drew my attention to the copy of the judgment passed in the suit on 6.5.2008 in which it is mentioned that to rebut the evidence of the plaintiff, neither the defendant himself appeared in the witness box nor he has examined any one else. He has submitted that some indulgence can be shown by the court in favour of the appellant if he has a good case on merits. He has submitted that the respondent has now deposited the remaining sale consideration before the executing court and he would be prejudiced if the delay is condoned. Learned counsel for the respondent has further submitted that there is a conflict in the plea and evidence about the date and manner in which the petitioner came to know of the decree dated 6.5.2008. According to him, in the application it is mentioned that his wife told him about the decree. According to him, if this was the Civil Revision No. 4939 of 2011 9 .. allegation of the petitioner, how he could be believed saying that he came to know of the decree on receipt of the notice of the execution application. He has further submitted that even if it is believed that on 14.2.2009, he came to know of the decree, thereafter also he is negligent in filing the appeal. He filed application for copy on 5.3.2009 and obtained the same on 19.3.2009, but still he filed the appeal on 30.3.2009. According to him, what he was doing between 14.2.2009 to 5.3.2009 has also not been explained by him. Learned counsel for the respondent has submitted that for all these reasons, the order dated 24.5.2011 passed by the first appellate court cannot be held unsustainable. As has been held by Hon`ble Supreme Court of India in R.B.Ramlingam Vs. R.B. Bhvaneshwari 2009(2) Civil Court Cases 440 (SC), the provisions of section 5 of the Limitation Act do not lay down any standard or objective test for the expression “sufficient cause”. It is laid down that the test of sufficient cause is purely an individualistic test and that no two cases can be treated alike. The true test to be applied in this regard is laid down in this decision where the court has to see whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. So, no decision in one case can apply with the same force to the facts of the other case. Every case has to be decided on its own facts after finding out if there had been sufficient cause for condonation of delay. Civil Revision No. 4939 of 2011 10 .. The accident petitioner claims to have met, in which he claims to have suffered head injury could have been a sufficient cause for explaining the delay. However, in this case, the medical evidence clearly shows that the petitioner was not hospitalized for more than three days. He even visited the hospital twice or thrice thereafter. He remained away from the proceedings of the case from 4.12.2006 to the date of applying for copies i.e., 5.3.2009. This long period cannot be said to have been spent by him in his treatment. The delay here is of 284 days and by taking treatment for 3 days in the hospital and visiting the hospital twice or thrice, he would not explain the delay and would not prove sufficient cause for condonation of delay. The delay upto 14.2.2009 even is, therefore, not explained by the petitioner. Then there is no explanation as to what the petitioner was doing between 14.2.2009 and 5.3.2009 as also between 19.3.2009 and 30.3.2009. No reasonable diligence has been proved on the part of the petitioner during this period. When he was already late for filing the appeal, the petitioner should have acted with more promptness in applying for copies and after getting the same, in filing the appeal. It is a case where suit had been filed against the petitioner for possession by way of specific performance of agreement of sale under which he is claimed to have received Rs. 2,50,000/- as earnest money. He did not even appear in the witness box to Civil Revision No. 4939 of 2011 11 .. defend him in the suit despite several opportunities, what to talk of examining a witness or two in his favour. Constrained by his conduct of consistent non-appearance for his evidence, the court had to close his evidence. In these circumstance, it cannot be said that he had a meritorious defence to be proved against the claim of Didar Singh. Therefore, it is not a case of some negligence but it is a case of sheer negligence on the part of the petitioner in prosecution of his case. The delay in bringing the appeal cannot be condoned for the reasons appearing in Jagjit Singh Puri's case (supra), which are valid on the facts of that case. This case is not covered by any of the principles summed up in Lipok AO's case (supra). The other decisions cited by learned counsel for the petitioner also have no application to the facts of this case. In these circumstance, I find no infirmity much less perversity in the findings recorded by learned Additional District Judge, Shaheed Bhagat Singh Nagar on issue No.1 framed in the application for condonation of delay. The finding has rightly resulted in dismissal of the application. I find no merit in the revision petition and dismiss the same. (VIJENDER SINGH MALIK) JUDGE October 20th, 2011 som