Civil Revision No.2014 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2014 of 2009 (O&M) Date of Decision: April 25, 2011 Gurdev Singh and others .....Petitioners v. Baljit Kaur and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.RBS Chahal, Advocate for the petitioners. Mr.Mehar Singh, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 10.3.2009, Annexure P1, passed by learned District Judge, Ropar, vide which application filed under Section 5 of the Limitation Act, 1963 (hereinafter to be referred as `the Act') for condonation of delay in filing the appeal was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned appellate Court. Facts relevant for the decision of present revision petition are that a suit for declaration was filed by respondents no.1 to 3-plaintiffs against respondents no.4 to 6-defendants no.1 to 3 and present petitioners- defendants no.4 to 7. Declaration was sought to the effect that the sale deed dated 26.6.2002 executed by respondents no.4 to 6 in favour of present petitioners is illegal, null, void and not binding upon the rights of the plaintiffs in the property in dispute. Suit was contested by all the defendants by filing separate written statements. Issues were framed. Evidence was adduced by Civil Revision No.2014 of 2009 (O&M) -2- plaintiffs as well as by respondents no.4 to 6-defendants no.1 to 3. No evidence was adduced by present petitioners-defendants no.4 to 7, who are subsequent vendees. Suit filed by respondents-plaintiffs was decreed to the extent that plaintiffs were held owners of 3/16th share of suit land and the sale deed dated 26.6.2002 and sanctioning of mutation No.980 on the basis of said deed was held illegal, null and void qua rights of plaintiffs in the land in dispute. Aggrieved against the said judgment and decree, appeal was filed by present petitioners alongwith an application for condonation of delay of 407 days in filing the appeal, which was contested by respondents- plaintiffs. Learned appellate Court framed the following issues in the application and reply thereof:- “1. Whether there are sufficient grounds for the condonation of delay in filing the appeal? OPA 2. Is the application not maintainable? OPR 3. Relief.” One of the petitioners, namely, Gurnam Singh, appeared as AW1, whereas one of the respondents-defendants, Piara Singh examined himself as RW1. Learned appellate Court decided both the issues against present petitioners and as a consequence thereof, application filed by petitioners for condonation of delay of 407 days in filing the appeal was also dismissed. It has been contended by learned counsel for the petitioners that appeal could not be filed by petitioners within limitation due to negligence on the part of their counsel in the trial Court. It is further contended that their counsel stopped appearing before learned trial Court and did not inform them about the progress of the case and about the decision of the case and hence, it is contended that petitioners cannot be made to suffer due to fault of their counsel. It is further contended that appeal and application for condonation of delay in filing the appeal was filed within limitation from the date of gaining the knowledge of the passing of the decree against the present petitioners. On the other hand, it has been contended by learned counsel for the respondents-plaintiffs that no cause, what to talk of sufficient cause, is made out in this case for condonation of delay of 407 days and hence, it Civil Revision No.2014 of 2009 (O&M) -3- cannot be said that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order, warranting interference by this court in this revision petition. Law has been well settled by Hon'ble Apex Court for dealing with the application for condonation of delay under Section 5 of the Limitation Act in filing the appeal, after considering all the previous judgments of Hon'ble Apex Court on the point, in a recent judgment rendered in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, 2010(2) RCR (Civil) 284: 2010(2) RAJ 205: 2010(2) JT 389: 2010(5) SCC 459: 2010(88) AIC 220: 2010(2) ICC 595, relevant paragraph of which reads as under:- “8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy 1999(2) RCR (Civil) 578: (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil 2001(3) RCR(Civil) 831: (2001) 9 SCC 106. In dealing with the applications for condonation of Civil Revision No.2014 of 2009 (O&M) -4- delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer 1988(1) RRR 555: (1988) 2 SCC 142, State of Haryana v. Chandra Mani 1996(2) RRR 82: (1996) 3 SCC 132, State of U.P. v. Harish Chandra 1996 (2) SCT 712: (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao 200;5:(2) RCR Criminal 414: 2005(2): RCR (Civil) 375: 2005 (2) Apex Criminal 75: (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan 2008(4) R.C.R.(Criminal) 119: 2008(4) RCR(Civil) 126: 2008(4) SCT 25: 2008(2) RCR(Rent) 234: 2008(5) RAJ 214: (2008) 14 SCC 582.” Hence, in view of this legal proposition, Court is bestowed with power to condone the delay in filing the appeal, if sufficient cause is shown for not filing the same within the stipulated period. No straight jacket formula can be laid down in dealing with the application for condonation of delay. However, Hon'ble Apex Court in various judgments held that liberal approach should be adopted by the Courts in condoning the delay of short duration and a stricter approach, where the delay is inordinate. In the present case, the delay is inordinate, i.e., delay of 407 days. Hence, petitioners were to make out a sufficient case for getting the delay condoned in filing the appeal. Ground taken by petitioners in the application for condonation of delay is that in the month of January 2008, they approached Patwari Halqa to get copy of jamabandi to sell their property and at that time they came to know that some orders have been passed by the Court against them and then they applied for certified copy of judgment and decree dated 2.1.2007 and also obtained copy of jamabandi Civil Revision No.2014 of 2009 (O&M) -5- dated 4.2.2008. However, only evidence adduced by petitioners is self serving statement of one of the petitioners, namely, Gurnam Singh, who tendered in evidence affidavit of his statement, Ex.A1, who in his cross-examination stated that he had been visiting their counsel to enquire about the stage of the case and he had also been appearing in the trial Court on some dates of hearing. He further submitted that he had already paid fee to his counsel. He also deposed that when he learnt about the fate of his case, then he had met his counsel to enquire about the case and his counsel told him that his case has already been decided in favour of the other party. However, he could not say as to when he had visited his counsel. He deposed that he had met Patwari who told him that the case was decided against him and that he had not obtained copy of the revenue record from the Patwari at that time. However, even the said Patwari has not been examined. Perusal of various zimni orders passed by learned trial Court shows that written statement was filed on their behalf by their counsel. Issues were also framed. Thereafter, attendance was marked by learned trial Court as counsel for the parties, however, presence of counsel for the petitioners has not been mentioned in the impugned judgment and decree. It was the duty of the petitioners as well to contact their counsel to know about the fate of their case. No record of the Lawyer has also been summoned by the present petitioners in order to prove that their counsel was not appearing in the Court. Even Clerk of the counsel was not examined. No affidavit of the counsel was also filed. No affidavit of the Patwari has also been filed. Hence, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court by coming to the conclusion that no sufficient ground for condonation of delay in filing the appeal is made out. Moreover, respondents-plaintiffs are not executant of the sale deed in dispute. Sale deed was executed by respondents-defendants no.1 to 3 in favour of present petitioners during pendency of litigation between respondents-plaintiffs and respondents-defendants no.1 to 3. Respondents- plaintiffs are widow and minor sons of deceased Jaspal Singh, who was son of Piara Singh. Piara Singh was having two sons, namely, Jaspal Singh and Malkiat Singh. Mohinder Kaur, defendant no.3 is wife of Piara Singh. Civil Revision No.2014 of 2009 (O&M) -6- Respondents-plaintiffs contested earlier litigation against Piara Singh, Malkiat Singh and Mohinder Kaur. The suit was decided in their favour upto this Court and they were held entitled to 3/16th share of estate of Piara Singh, being legal heirs of Jaspal Singh. Sale deed has been executed by respondents-defendants no.1 to 3 in favour of present petitioners during pendency of the said litigation before this Court. Hence, respondents- plaintiffs had to file another suit for getting the said sale deed set aside to the extent of their share in the property in dispute, as has been held upto this Court. Learned trial Court has only held that respondents-plaintiffs are owners to the extent of 3/16th share in the suit land and the sale deed dated 26.6.2002 and mutation No.980 qua rights of plaintiffs is illegal, null and void. Respondents-plaintiffs had been litigating since the year 1995, when they filed earlier suit against respondents-defendants no.1 to 3 for getting their right declared in the estate of Piara Singh. Present petitioners are subsequent vendees during the pendency of earlier litigation. Hence, in view of these facts, it cannot be said that application for condonation of delay of 407 days in filing the appeal on behalf of the present petitioners-defendants, who are subsequent vendees, is a bona fide one and that an illegality or material irregularity has been committed by learned first appellate Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2004(1) RCR (Civil) 147, that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. There is no merit in the present revision petition. The same is hereby dismissed. 25.4.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No. Civil Revision No.2014 of 2009 (O&M) -7-