Civil Revision No.8498 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.8498 of 2010(O&M) Date of Decision: March 10, 2011 Mohinder and another .....Petitioners v. Smt.Reshman .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.L.S.Sidhu, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 29.9.2010, Annexure P2, passed by learned Additional District Judge, Ferozepur, vide which appeal filed by petitioners-judgment debtors against the judgment and decree dated 30.6.2008, passed by learned Civil Judge, Senior Division, Ferozepur, Annexure P1, was dismissed on the ground of limitation. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned first appellate Court. Facts relevant for the decision of present revision petition are that civil suit was filed by respondent-plaintiff, who is old widow lady and was 70 years of age at the time of filing of this suit in the year 2005 for a decree for mandatory injunction directing present petitioners to hand over and deliver the vacant possession of the house in dispute with a consequential relief of permanent injunction restraining defendants from demolishing any portion of the house in question and from raising any further construction. Suit was filed by her by alleging that present petitioners- defendants are in possession as a licencee, whereas present petitioners- Civil Revision No.8498 of 2010(O&M) -2- defendants raised a plea of adverse possession. The suit was decreed in favour of respondents-defendants on 3.6.2008. No evidence was led by present petitioners-defendants before learned trial Court. The appeal was not filed within prescribed period of limitation and however, an application was filed for condonation of delay of more than 1 year and 8 months. The application was contested by respondent-plaintiff. Issues were framed by learned first appellate Court. After hearing both the parties, the application was dismissed by learned first appellate Court by observing as under:- “6. The onus to prove this issue was absolutely on the applicant as the applicant has filed the application under Section 5 of Limitation Act which is under disposal to condone the delay which is of 1 year and 8 months. In this regard, it is important that the statement of applicant, who appeared as his own witness as AW1 be scrutinized. As per chief-examination of applicant Mohinder Singh who has stepped into the witness box as AW1, he has stated that when the order, i.e., judgment and decree was passed by the court, he mistook the order to have been passed in his favour, whereas the same was passed against him. When the applicants were summoned in execution proceedings, they came to know that in fact the judgment and decree has been passed by the trial court against them. However, this plea of the applicants does not appeal to the logic that the applicant would not have gone through the contents of judgment and decree or that they presumed that it has been decided in their favour. Further, the cross-examination of applicant Mohinder Singh is relevant, wherein he has stated that earlier also in the civil suit his present counsel Sh.S.P.Prinja Advocate was his counsel. He has further admitted that it is correct that on each and every date, his clerk has been apprising him about the proceedings conducted in the court of his suit. He has further admitted that when the suit was fixed for evidence of the applicant, he had informed that the applicants are to bring their evidence. Further, the applicant has admitted that before the trial Court no evidence was led Civil Revision No.8498 of 2010(O&M) -3- by him despite told by the clerk of Shri S.P.Prinja Advocate that the court had granted them last opportunity to lead their evidence. He admitted that even after availing last opportunity, he had not appeared before the trial Court and no evidence was led. He has further admitted in his cross- examination that when he had lost his suit before the trial Court, he was told by his counsel and the clerk of his counsel that appeal was to be filed against the said judgment. Hence, the cross-examination of the applicant clinches the matter in favour of the respondent to this effect that there was intentional delay on the part of the applicant to prefer an appeal against the impugned judgment and decree. From the impugned judgment and decree passed by the trial Court, it is clear that the applicants-defendants of that suit had not led any evidence before the trial Court. Thus, it is clearly established that the applicants as admitted by them have not led any evidence before the trial Court and were very aware of the fact that the said civil suit has been decided against them by trial Court. As mentioned earlier, this fact is admitted by applicant Mohinder Singh AW1 in his cross- examination that his counsel and his clerk has told him that the trial Court had decided the suit against him. Despite the knowledge of the said judgment and decree having been passed against the applicants, the applicants took one year and 8 months to file the present appeal. It has been held in authority reported as Hari Kishan v. Gian Kaur, 1996(2) Recent Revenue Reports 330 by Double Bench of Hon'ble Punjab and Haryana High Court that in order to show that there was sufficient cause for not filing the appeal within limitation period, the applicant has to prove that he was acting diligently with full care and prudently, otherwise, the application for condonation of delay is liable to be dismissed. In that very case also, as the applicant had failed to prove on file that he had acted diligently and prudently, his application for condonation of delay as well as appeal were Civil Revision No.8498 of 2010(O&M) -4- dismissed by the Hon'ble Punjab and Haryana High Court. This authority is fully applicable to the situation in hand and in the present case also, the applicant himself admitted that he was in knowledge about the judgment and decree having been passed against him by the trial Court, yet no appeal was filed within a period of 1 year and 8 months. Thus, it shows that he had not acted diligently and prudently. Relying upon the said case law, it is held that in the present case there are no sufficient grounds to condone the delay in filing appeal which is for a period of one year and 8 months. Accordingly this issue is decided against the applicants and in favour of the respondents. It has been contended by learned counsel for the petitioners- defendants that petitioners being illiterate persons could not understand that the case was decided against them and that they came to know about this fact when they received notice in execution filed by respondent-plaintiff that the case was decided against them and thereafter they filed appeal alongwith application for condonation of delay. This case came up for hearing before a coordinate Bench of this Court on 3.1.2011, when following order was passed:- “C.M.No.32934-CII of 2010 Application is allowed. Filing of certified copy of Anenxure P-1 is dispensed with. C.R.No.8498 of 2010 Petitioners are aggrieved against an order passed by learned first appellate Court on 29.9.2010, whereby an application for condonation of delay of 1 year and 8 months in filing of the appeal was dismissed. Plaintiff-respondent has filed a suit for mandatory injunction alleging the defendant-petitioners to be a licencee. Defendants-petitioners have raised a plea of adverse possession. After contest, the suit was decreed on 3.6.2008. The appeal was preferred alongwith an application for condonation of delay and after recording the evidence, the learned first appellate Court dismissed the said application. Civil Revision No.8498 of 2010(O&M) -5- Normally, this Court is liberal in condoning the delay but the facts of the case leave an impression that the attempt of the petitioners is to continue in possession of the premises as the decree was granted more than 2 years earlier in favour of an old lady of over 75 years of age and against a person who has raised a plea of adverse possession. Therefore, the application to seek condonation of delay cannot be said to be bona fide prima facie. At this stage, learned counsel for the petitioners seeks some time to get instructions from the petitioners as to whether the petitioners are ready and willing to surrender the possession with liberty to claim possession, in the event of the appeal being allowed. List on 10.1.2011.” Case was again taken up on 10.1.2011 and however, on the request of counsel for the petitioner, it was adjourned to 14.1.2011. On 14.1.2011, it has been stated by learned counsel for the petitioners that petitioners are not ready and willing to surrender possession with liberty to claim possession in the event of appeal being allowed as per order passed by this Court on 3.1.2011. In this case there is delay of more than 1 year and 8 months in filing the appeal. Admittedly, no evidence was adduced by present petitioners-defendants before learned trial Court, as is clear from the aforementioned order passed by learned appellate Court. One of the petitioners when appeared in witness box has himself admitted that in the civil suit as well Shri S.P.Prinja was the Advocate, who filed the present appeal. He has also admitted that on each and every date of hearing, clerk of counsel used to apprise him about the proceedings conducted in the Court. He has also admitted that when the suit was fixed for evidence of the applicants, the counsel had informed that applicants were to bring their evidence. He has also admitted that no evidence was led by them before learned trial Court despite being told by the counsel that the same was last opportunity for evidence. He has also admitted that no evidence was led by them before learned trial Court despite last opportunity. He has also admitted that when his suit was decided against him by learned trial Court, Civil Revision No.8498 of 2010(O&M) -6- he was told by his counsel and the clerk of his counsel that the appeal was to be filed against the said judgment and, however, he remained silent. Hence, in view of these facts, it cannot be said that petitioners were not in knowledge of the fact that the suit was decided against them. Hence, in view of the stand taken by petitioners-applicants, no case whatsoever for condonation of delay of more than 1 year and 8 months in filing the appeal is made out. Hence, in view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in dismissing the application for condonation of delay and in consequence thereof dismissing the appeal as having been not filed within limitation and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court a Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 10.3.2011 (Ram Chand Gupta) meenu Judge