C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) Date of Decision: December 9, 2011 Sukhdev Singh .....Appellant v. Smt.Phoolan Devi and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.K.Verma, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) The present regular second appeal has been filed against judgment and decree dated 28.11.2007 passed by learned Additional District Judge, Hisar, allowing appeal filed by respondents-plaintiffs against judgment and decree dated 4.8.2007 passed by learned Civil Judge (Junior Division), Hisar, dismissing the suit filed by respondents-plaintiffs against present appellants-defendants. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, respondents-plaintiffs filed this suit for recovery of `25,000/- alongwith interest on the plea that Ishwar Singh, husband of respondent-plaintiff no.1 and father of respondent-plaintiff no.2 was employed by present appellant as mason for construction of shop in the month of September-October 1998 and that as high tension power wires were passing over the said building, he got electrocuted while he was C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) -2- constructing the shop, as a result of which he died. Panchayat was convened and in the Panchayat present appellant promised to pay `25,000/- as compensation on account of death of Ishwar Singh. He promised to pay `10,000/- on 13.10.1998 and `15,000/- was to be paid on 13.11.1998. However, he did not pay even a single penny. Registered notice was sent by respondents-plaintiffs to present appellant-defendant, however, he did not make payment nor the notice was replied. Notice of suit was issued to present appellant-defendant. Notice was duly served. Mr.Rajinder Kumar, Advocate also appeared on behalf of present appellant and sought time to file written statement and, however, written statement was not filed despite seeking time. Thereafter suit was dismissed in default on 8.1.2003 and, however, the same was restored vide order dated 10.4.2003, after issuing notice to present appellant-defendant no.1. Same Advocate, i.e., Mr.Rajender Kumar appeared on behalf of appellant-defendant no.1 on 15.12.2003 and pleaded that he had no instructions and thereafter notice was again issued to present appellant-defendant no.1 and when he did not appear despite service, he was proceeded ex parte on 2.12.2005. Ex parte evidence was adduced by respondents-plaintiffs and, however suit filed by respondents-plaintiffs was dismissed by learned trial Court. On appeal filed by respondents-plaintiffs, the judgment was reversed by learned first appellate Court and the suit was decreed for recovery of `40,000/- inclusive of interest. The present appeal has not been filed within prescribed period of limitation. There is delay of 1365 days in filing the present appeal. Appeal is accompanied by an application filed under Section 5 of the C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) -3- Limitation Act for condonation of delay of 1365 days in filing the present appeal. Main ground taken for condoning the delay by learned counsel for appellant-defendant is that ex parte judgment and decree was not in the knowledge of appellant-defendant and that the same came in his knowledge for the first time on 24.10.2011 and hence, there is delay of 1365 days in filing the present appeal. In a recent judgment rendered by Hon’ble Apex Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, 2010(2) RCR(Civil) 284, law on the point of condonation of delay in filing the appeal has been summed up as under:- “8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) -4- in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy 1999(2) RCR (Civil) 578: (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil 2001(3) RCR(Civil) 831: (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer 1988(1) RRR 555: (1988) 2 SCC 142, State of Haryana v. Chandra Mani 1996(2) RRR 82: (1996) 3 SCC 132, State of U.P. v. Harish Chandra 1996 (2) SCT 712: (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao 200;5:(2) RCR Criminal 414: 2005(2): RCR (Civil) 375: 2005 (2) Apex Criminal 75: (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan 2008(4) R.C.R.(Criminal) 119: 2008(4) RCR(Civil) 126: 2008(4) SCT 25: 2008(2) RCR (Rent) 234: 2008(5) RAJ 214: (2008) 14 SCC 582.” In view of this legal proposition, Court is bestowed with power to condone the delay in filing the appeal, if sufficient cause is shown for not filing the same within the stipulated period. No straight jacket formula can be laid down in dealing with the application for condonation of delay. However, Hon'ble Apex Court in various judgments held that liberal C.M.No.14148-C of 2011 in RSA No.4858 of 2011(O&M) -5- approach should be adopted by the Courts in condoning the delay of short duration and a stricter approach where the delay is inordinate. In this case, there is delay of 1365 days in filing the appeal, which cannot be said to be of shorter duration. In the present case appellant-defendant avoided appearance in the Court despite service. Though counsel appeared on his behalf and sought date for filing written statement and however later on he did not appear. Evidence of respondents- plaintiffs remain unrebutted. Respondents-plaintiffs have been able to prove writing Ex.P1 executed by present appellant-defendant admitting his liability to pay the compensation. Notice Ex.P2 was also issued to him before filing the suit and even no reply to the said notice was also given. Hence, it cannot be said that ex parte proceedings and ex parte decree was not in the knowledge of present appellant-defendant. Hence, in view of these facts, no ground, what to talk of sufficient ground, is made out for condonation of delay of 1365 days in filing the present regular second appeal. The application for condonation of delay in filing the present appeal is, hereby, dismissed. As a consequence thereof, the present regular second appeal is also dismissed as having not been filed within the prescribed period of limitation. 9.12.2011 (Ram Chand Gupta) meenu Judge