R.S.A. No. 1126 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1126 of 2009 (O&M) Date of decision: 30.3.2009 Uttar Haryana Bijli Vitran Nigam Ltd. and others ....Appellants Versus Om Parkash Luthara ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. S.K. Hooda, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 22.10.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent seeking declaration, that he was entitled to two advance increments in view of qualification, stands decreed. The learned trial Court on the basis of evidence led by the parties, decreed the suit by relying on the instructions issued by the appellant/defendants. In appeal, application under Order 41 Rule 27 of the Code of Civil Procedure was moved by the appellant/defendants for permission R.S.A. No. 1126 of 2009 (O&M) -2- to lead additional evidence i.e. instructions subsequently issued to defeat the right of the plaintiff/respondent. The application was allowed. In spite of application having been allowed, the defendant/appellants were satisfied by merely placing on record the circular, without proving the same in accordance with law. The circular was only marked and not exhibited. The learned lower appellate Court, therefore, held that the document being only 'marked' could not be read in evidence. The defendant/appellants in spite of having availed an opportunity, failed to lead additional evidence, to defeat the rights of plaintiff/appellant. The learned counsel for the appellants contends that this appeal raises the following substantial question of law: - “Whether the learned Courts below could have ignored the document on record though marked?” The learned counsel in support contends that once circular was placed on record though marked could not be ignored by learned lower appellate Court. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. Once the defendant/appellants failed to lead evidence in accordance with law in spite of opportunity having been granted to them, no fault can be found with the concurrent finding of fact recorded by the learned courts below. The plaintiff/respondent has been granted the benefit in terms of the instructions issued by the defendant/appellants, as it is not disputed that plaintiff/respondent improved his qualification to that of graduation. R.S.A. No. 1126 of 2009 (O&M) -3- The substantial question of law referred to above, is answered against the appellants. Besides this, there is an application for condoning the delay of 33 days in filing the appeal. The stand taken for condonation of delay reads as under: - “That on the pronouncement of the judgment the appellants applied for the certified copy of the said judgment and decree on 27.10.2008 and same was supplied to the appellants on 4.11.2008. After receiving the certified copy of the judgment and decree, the case was processed and sent to the higher authorities for taking a decision regarding filing of the appeal before this Hon'ble High Court. The competent authority decided to file the present appeal and the Legal Remembrancer, Power Utilities, Haryana requested to the present counsel to file appeal against the impugned judgment and decree vide letter dated 3.2.2009. Thereafter the said file was handed over to the present counsel for drafting of the appeal and now same is being filed today and as such there is delay of 33 days in filing the above noted appeal.” It would be seen that the averments made in the application, lack material particulars and do not show sufficient cause for condoning the delay of 33 days in filing the appeal. Consequently, the application is ordered to be dismissed. The appeal is ordered to be dismissed on merits as well as on the ground of limitation. (Vinod K. Sharma) Judge March 30, 2009 R.S.