IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 412 of 2010 Date of decision: 26.5.2011 Promilla Bakshi ….Petitioner. Versus Smt. Raj Devi and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. Narinder Sharma, Advocate. _________________________________________________ Deepak Gupta, J. (Oral) 1. The petitioner by means of this petition has challenged the order dated 14.09.2010 whereby the learned Additional District Judge, Solan allowed the application filed by the respondents under Section 5 of the Limitation Act and condoned the delay in filing the appeal. 2. Briefly stated the facts of the case are that the petitioner (hereinafter referred to as the plaintiff) filed a suit against S/Shri Sohan Singh and Mohan Lal. Shri Mohan Lal admittedly died during the pendency of the case and his legal representatives where brought on record. They 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 were also represented by a counsel. Shri Sohan Singh also unfortunately expired on 20.10.2007. After his death none appeared for him or for the representatives of Mohan Lal and finally the learned trail Court passed an ex-parte decree in favour of the plaintiff. This decree was passed on 16.1.2008. Appeal against the said decree was filed on 24.12.2008. Since the appeal was time barred the appellants preferred an application under Section 5 of the Limitation Act for condonation of delay. 3. According to the appellants the suit was being contested on behalf of the defendants by Shri Sohan Singh, who was watching the interest of the entire family members. They submitted that they were not aware with regard to the stage of the suit or the name of the counsel engaged to appear before the trial Court and some of them were not aware about the suit. It was further averred that after the death of Shri Sohan Singh none appeared on behalf of the appellants and hence they were proceeded against ex-parte. The case of the appellants is that they came to know about the decree in question only on 20.10.2008 when one Shri Sarvesh Kumar asked them to vacate the premises. It was only thereafter they 3 went to the District Court and discussed the matter with Shri Brajesh Saklani, Advocate, who sought time to go through the file. They again met Shri Brajesh Saklani on 20.12.2008 and came to know that an ex-parte decree had been passed and thereafter the appeal was filed. 4. The plaintiff contested the application and raised various objections including the objection that there has been concealment of facts. Issues were framed in this application and evidence was led by the parties and after considering the entire evidence the learned lower Appellate Court allowed the application. 5. Shri Karan Singh Kanwar, learned counsel for the petitioner, has strenuously contended that no case was made out for grant of condonation of delay. He submits that even as per the averments made in the application the petitioner came to know about the decree on 20.10.2008 but still the appeal was not filed within one month. His further contention is that the copy was also ready in the month of November and the appeal was not within time from the date of supply of the copy. 6. There is no manner of doubt that Sohan Singh died and his legal heirs were never brought 4 on record. Once the legal heirs were not brought on record no knowledge of the suit can be imputed to them. Therefore, their version that they came to know about the decree only on 20.10.2008 cannot be said to be wrong. If the delay thereafter is taken into consideration the same is not very much. Even otherwise, I am of the view that no party should be debarred from contesting the claim on merits. Once the lower Appellate Court has exercised jurisdiction vested in it by law and there is no jurisdictional error in the exercise of such jurisdiction, this Court would not normally exercise its extra ordinary jurisdiction vested in it under Article 227 of the Constitution of India. The petition is, therefore, dismissed. No order as to costs. 26th May, 2011 (Deepak Gupta) ™ Judge