CR No. 1978 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 1978 of 2010 (O&M) Date of decision:- 17.8.2010 S. Gurjit Singh ......petitioner vs. Harsaroop Singh & another ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Mukul Aggarwal, Advocate for the petitioner Mr. R.S. Bajaj, Advocate for respondent No.1. HEMANT GUPTA, J (ORAL) CM No. 20116-CII of 2010 Application is allowed and the reply filed on behalf of respondent No.1 is taken on record. CR No. 1978 of 2010 Challenge in the present revision petition is against the order passed by learned Trial Court on 6.11.2008, whereby an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay in filing the appeal beyond the period of limitation against the order rejecting an application to seek setting aside of the ex-parte judgment and decree was dismissed. The plaintiff-respondent No.1 filed a suit for declaration challenging the sale deed dated 15.12.1986 executed in favour of petitioner and respondent No. 2- defendant No.2 in the suit. The sale was challenged on the ground that the sale consideration has not been paid to the plaintiff. In the said suit, an ex-parte judgment & decree was granted in favour of the plaintiff-respondent No.1 on 28.7.1994. An application for setting aside the aforesaid ex-parte judgment & decree was filed on 7.11.1994 but the same was dismissed on 12.9.2006. A certified copy of the said order was applied by the petitioner on 13.9.2006, the same was delivered on 3.10.2006. The appeal before the learned first Appellate CR No. 1978 of 2010 -2- Court was filed on 18.12.2006, i.e. after the delay of about 45 days in filing of the appeal. Learned first Appellate Court found that the memo of appeal was prepared for filing in Court i.e. 5.12.2006. It is so apparent from the stamps on the memo of appeal and the power of attorney. The Court found that there is no explanation for delay of each day in filing of the appeal. Learned counsel for the petitioner has vehemently argued that the petitioner was not to gain anything in filing the appeal within a period of limitation. However, negligence in seeking condonation of delay is not the ground for rejection of the same. Reference is made to the judgment passed by the Supreme Court in N. Balakrishnan vs. M. Krishnamurthy, 1998(7)SCC123, wherein it has been held that application under Section 5 of the Limitation Act i.e., delay in filing of the appeal should be condoned. It was held that there ought to be some negligence or carelessness but what is required to be examined as to whether the parties are likely to gain anything by not filing appeal within the period of limitation. On the other hand, learned counsel for respondent has vehemently argued that learned first Appellate Court passed an order on 6.11.2008, but the same has been challenged by the petitioner under Article 227 of the Constitution of India on 13.1.2010 in stead of invoking Section 115 of the Code of Civil Procedure. It is contended that no case is made out for condonation of delay as the petitioner wishes to take advantage of his own wrong. I do not find any merit in the arguments raised by learned counsel for respondent. The principle to seek condonation of delay has been explained in the case of Balakrishnan's case (supra). The petitioner was not to gain anything by not filing the appeal within a period of limitation. It appears that application for setting aside the ex-parte judgment & decree was filed in November 1994 but came to be decided 12 years later in 2006. Without going into the reasons that CR No. 1978 of 2010 -3- which of the parties was delaying the decision, the fact remains that already 12 years have gone in deciding the application by the learned trial Court. In view of the principle laid down in Balakrishnan's case (supra), the order passed by the learned first Appellate Court cannot be said to be legally sustainable. The reasoning given by the learned first Appellate Court is that the memo of appeal was prepared on 5.12.2006 but filed on 18.12.2006 and there is no explanation of delay in each day in filing of the appeal are not sustainable. Learned first Appellate Court has failed to exercise its jurisdiction in a legal manner. In the absence of any lack of bona fide, the first Appellate Court should have condoned such delay. The arguments that the petitioner should have filed the petition under Section 115 of the Code of Civi Procedure is without any merit. This Court, while exercising supervisory jurisdiction in respect of the order passed by learned first Appellate Court, is to examine whether the order passed by the Court are within the bounds of law. The reasoning given by the Courts below suffers from patent illegality and material irregularity which has caused substantial injustice to the petitioner. Such injustice cannot be permitted to stand only for the reason that the petitioner has invoked the jurisdiction of the Court under Article 227 of the Constitution of India but not under Section 115 of the Code of Civil Procedure. Consequently, the order passed by the learned first Appellate Court is set aside and the delay in filing of the appeal is condoned. Learned first Appellate Court is directed to decide the appeal on merits. The parties are directed to appear before the learned first Appellate Court on 6.9.2010 for further proceedings in accordance with law. Allowed, in the above terms. (HEMANT GUPTA) JUDGE 17.8.2010 preeti