IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M. No. 510-C of 2009 and R.S.A. No. 231 of 2009 Date of decision: 18-4-2009 Mohinder Singh … Applicant -appellant versus Mohan Singh & others … Respondents THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Rakesh Gupta, Advocate, for the applicant-appellant. … ARVIND KUMAR, J: The present appellant was plaintiff No.1 in the suit for declaration and permanent injunction filed by him along with Bant Singh, plaintiff No.2. The suit was decreed on 13.2.2001. However, the appeal of the defendants was allowed vide judgment and decree dated 1.6.2004, judgment and decree of the trial Court was set aside and resultantly, the suit of the plaintiffs was dismissed. The present appeal has been filed on 9.1.2009. Along with the appeal, an application under Section 5 of the Limitation Act has also been filed and the delay of 1654 days in filing the instant regular second appeal has been sought to be condoned. The ground taken is that during the pendency of the appeal before the first appellate Court, the applicant-appellant was told by the lawyer that they(plaintiffs) are not required to be present personally in the appeal. Thereafter, when the plaintiff did not hear anything from the said counsel, he contacted the lawyer when he was told about the fate of the appeal. The applicant- appellant then immediately applied for a copy of judgment of the first appellate Court on 16.12.2008 which was so obtained by him on 20.12.2008. Thereafter, when he contacted his lawyer at Chandigarh, he was told that the lawyer representing him in the Court below did not appear on his behalf and thus, he(plaintiff) was proceeded against ex-parte. It has thus, been stated that the applicant-appellant only came to know about C.M. No. 510-C of 2009 and -2- R.S.A. No. 231 of 2009 passing of impugned judgment and decree on 15.12.2008. The explanation, referred to above, is not worth of any credence. It is highly improbable that the applicant-appellant who along with other co-plaintiff, Bant Singh, had been pursuing his case before the trial Court, would remain mum for such a long period, i.e. more than 4 years, in not contacting his lawyer to know about the proceedings/fate of their case before the first appellate Court. Apparently, the pleas now being taken have been urged by the plaintiff- appellant just to cover the lapse/delay on his part in approaching this Court after decision of appeal by the first appellate Court. Thus, no plausible explanation is forthcoming for not filing the appeal within limitation. The approach, as taken, is very casual. It has also been the endeavour of this Court to hear the parties on merits, but in the facts and circumstances of this case, this Court is of the considered opinion that the appellant has been negligent and callous throughout. Although the Hon'ble Supreme Court has recommended that a pedantic approach should not be made in the matter, but in the cases where there is huge delay, such a discretion cannot be exercised as it would become mockery of law of limitation. No person should be allowed to take undue advantage of such a concession. The Courts should also not lose sight of the fact that by not taking steps within the time prescribed, a valuable right accrued to the other party gets defeated. In the case of P.K. Ramachandran v. State of Kerala and another, (1997) 7 Supreme Court Cases 556, it has been held by the Hon'ble Supreme Court as under:- “ The law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time.” C.M. No. 510-C of 2009 and -3- R.S.A. No. 231 of 2009 Thus, there being no plausible explanation, this Court finds no justification for condoning the delay of more than 4½ years in filing the instant appeal as it would be unfair to the defendant-respondents to re-open the settled issue once again. Accordingly, the instant application as well as the appeal stand dismissed. ( ARVIND KUMAR ) April 18, 2009 JUDGE JS