C.R. No.1287 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.1287 of 2008 Date of decision 18 .5.2010. Lekh Raj ...... Petitioner. versus Ghansham Lal ...... Respondent. CORAM : HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Sarju Puri, Advocate for the petitioner. Mr. Vikas Behl, Advocate for respondents. K.C.PURI. J. This is a revision petition filed under Article 227 of the Constitution of India for setting aside the impugned order dated 11.1.2008 passed by learned Additional District Judge, Nawanshahr whereby the application of the petitioner under Section 5 of the Limitation Act for condoning the delay in filing the appeal has been dismissed. Prayer has also been made for allowing the aforesaid application of the petitioner after condoning the delay. It has been averred by the petitioner that the execution of the decree was pending. The petitioner was appearing in person. On C.R. No.1287 of 2008 2 24.10.2002 when the petitioner came to attend the Court, the respondent met him at Nehru Gate, Nawanshar and informed that he has got the execution dismissed as he ( the petitioner herein) has paid the rent to his brother namely Charandeep Jain. On the said assurance, the appellant went to Rahon and after few days, he went to Uttar Pradesh to look after his land under the impression that the matter stood compromised but shocked to know when the warrant of possession has been issued by the Rent Controller in execution of ex- parte ejectment order. The appellant-petitioner contacted his lawyer who inspected the record and came to know that the evidence of the petitioner was closed by order and execution is still pending. The petitioner was presented by sufficient cause and could not file the appeal as he was under the impression that the matter stood compromised. Therefore, the delay on the part of the petitioner was not intentional, the petitioner would suffer irreparable loss if the application for condonation of delay is not accepted. The petitioner prayed for acceptance of the present revision petition. The respondent, on notice appeared and denied all the circumstances alleged by the petitioner and prayed for dismissal of the revision petition. The following issues were framed :- 1.Whether there are sufficient grounds to condone the delay in filing the present appeal ?OPA. 2. Whether the application is not maintainable ?OPR. 3. Relief. C.R. No.1287 of 2008 3 On appreciation of the evidence and after hearing learned counsel for the parties, the learned Appellate Court dismissed the application of the petitioner. Feeling dis-satisfied with the aforesaid order, the petitioner has preferred the instant revision petition before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the revisionist has submitted that the Courts should be very liberal in condoning the delay in filing the appeal. The petitioner had been appearing in the execution application in person. On 24.10.2002, the petitioner came to attend the Court. The respondent met him at Nehru Gate, Nawanshar and informed that he has got the execution dismissed on the ground that petitioner paid the rent to his brother Charandeep Jain. On his assurance, he went to Rahon and thereafter went to Uttar Pradesh. The appellant remained under impression that the matter stands compromised but he shocked that warrant of possession has been issued. The petitioner contacted his lawyer and came to know the execution is still pending. The petition was resisted by the respondent-decree-holder and has stated that it is a cock and bull story. He never assured the petitioner that execution petition would be considered that the same has been dismissed. The learned Additional District Judge came to the conclusion that there was no sufficient ground for condonation of delay. The story of making payment to brother of decree-holder does not C.R. No.1287 of 2008 4 appeal to the reason. That finding does not call for any interference. Charandeep Jain brother of decree-holder has admittedly a dispute about the property in question with respondent whereas the petitioner has admitted that the decree-holder as his landlord and as such there was no question of making payment of the rent to Charandeep Jain brother of the respondent-decree-holder, moreso, when they are already entangled in serious type of litigation. From the perusal of the record, it is revealed that the revisionist is playing hide and seek with the Court at all stages of the trial. In the initial stage, he appeared before the Rent Controller. The costs was assessed but he did not tender the rent and absented from the Court and thereafter has taken a wrong stand, that rent has been paid to the brother of the landlord. Again at the appellate stage, an application under Section 5 of the Limitation Act has been filed after considerable delay. The order dated 15.5.2003 has been challenged on 21.8.2004 i.e. after period of more than 1¼ years. A Court comes to the rescue of a litigant, who is vigilant to his rights. The argument of the learned counsel for the respondent that the petitioner is mere a figure head and the real person fighting the litigation is his brother Charandeep Jain, carries weight. In case the petitioner would have actually been interested to save his possession over the suit property, he would not have absented from the Court of Rent Controller. The explanation given by the petitioner in late filing the appeal for 1¼ years does not appeal to the reason. Authority Sohan Lal vs. Parkash Kaur & Ors. 2009 (2) Civil Court Cases 218 (Punjab and Haryana) is not helpful to the C.R. No.1287 of 2008 5 petitioner as in that case the tenant was not served through munadi and affixation and the case of the tenant was that report of the Process Server in this regard was procured in connivance with the landlord. However, in the present case, the petitioner has been personally served and he appeared before the Rent Controller but thereafter absented from the Court by taking the plea that matter has been compromised, which plea is wrong on the face of it. Authority Shital Deen vs. State of U.P. & Ors. 2010 (1) Civil Court Cases 157 (Allahabad) lays down that delay should be liberally condoned where there are sufficient cause. As discussed above, it cannot be said that there are sufficient cause to condone the delay in filing the appeal. In authority Commissioner Nagar Parishad, Bhilwara vs. Labour Court Bhilwara & Anr. 2009 (2) Civil Court Cases 371 (S.C.) the Hon'ble Apex Court laid down the law that at the time of condonation of delay, merits of the case is not to be considered. There is no dispute with the said proposition of the law. In the present case, there is nothing on the file to show that the Appellate Court has touched the merits of the case. In view of the above discussion, the revision petition is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 18th, 2010 sv