IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 357 of 2009 Date of Decision: 12th May, 2010 Puran Chand and another Appellants Versus Durga and another Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr. G.C. Gupta, Sr. Advocate with Mr.Ashish Jamalta, Advocate. For respondent No. 1: Mr.Dalip Kumar Sharma, Advocate. Sanjay Karol, J. (Oral) 1. Plaintiffs S/Shri Puran Chand, Bhupender Singh and Ram Singh filed a suit for possession against defendant Shri Durga. Civil Suit No. 80 of 2003 was dismissed by Civil Judge (Senior Division), Karsog, District Mandi, H.P. in terms of judgment and decree dated 16.3.2005. 2. Aggrieved of the same, plaintiffs filed appeal in the Court of District Judge, Mandi, H.P. The same was registered as Civil Appeal No.42 of 2005. In terms of judgment and decree Whether the reporters of Local Papers are allowed to see the Judgment? dated 5.9.2007 the Additional District Judge, Mandi, H.P. camp at Karsog, even dismissed the said appeal. 3. Aggrieved of the same plaintiffs have filed this Regular Second Appeal under Section 100 of the Code of Civil Procedure. The appeal was filed in the Registry of this Court on 17.7.2009 accompanied with an application under Section 5 of the Indian Limitation Act, 1963 being CMP No.692 of 2009. The delay in filing the appeal is one year, seven months and one day. 4. Mr. Dalip Sharma, has placed on record certified copy of an application moved by Shri Puran Chand, plaintiff No.1, for obtaining the certified copy of impugned judgment and decree. The application was moved before the Court below and the certified copy was received by Shri Tula Ram, who has appended his signatures in Hindi. 5. The ground for filing the appeal belatedly as set out in the application are reproduced as under:- “That the appeal was decided by the learned Additional District Judge, Mandi, (Camp at Karsog), on 5th September, 2007 and the limitation to file the appeal expired on 4th September, 2007. The appeal could not be filed within the period of limitation for the reasons that the applicants have engaged one Shri D.C.Guleria, Advocate, who is practicing at Mandi. The applicants were not present on the date when the judgment in the case was announced and the information regarding the same was also not given to the applicants by their counsel. Since it was an appeal and the applicants were not required to be present on each day of hearing in the appeal and they bonafidely believed that when their (sic) is any decision in the appeal, they will be informed by the counsel. The General Power of Attorney of the applicants also visited the office of the counsel number of times to inquire about the fate of the appeal, however, at times the counsel was not available and as such he could not know about the fate of the appeal and it is only during the last week of June, 2009, that the General Power of Attorney of the applicants met their counsel at Mandi and came to know that the appeal filed by the applicants and proforma respondent No.2 has been dismissed on 5th September, 2007. The General Power of Attorney of the applicants there upon asked the counsel as to whether he has not obtained the certified copy of the judgment. On this the counsel at Mandi informed to the General Power of attorney of the applicants that the copy was well as brief has been misplaced and is not traceable. The GPA of the applicants immediately, thereafter on 26th June, 2009 applied for the certified copy of the judgment passed by the learned Additional District Judge, which was attested and made available on 8th July, 2009. The General Power of Attorney of the applicants also applied for the certified copy of the judgment and decree of the learned trial Court on 27th June, 2009 which was prepared and attested on 6th July, 2009. The General Power of Attorney of the applicants thereafter came to Shimla and consulted an Advocate regarding the filing of the appeal and he was informed that the appeal has already became time barred. As such there is delay of about one year and seven months in filing the appeal which is neither intentional nor deliberate but for the reasons stated hereinabove and especially in view of the fact that General Power of Attorney of the applicants is layman inasmuch as the GPA of the applicants, who was pursuing the matter is also not residing at Karsog and is a resident of Shimla and as such, was not in a position to know about the day to day progress of the appeal and only believed on his counsel and as such the delay deserves to be condoned and especially in view of the fact that the appeal raises substantial questions of law for decision by this Hon’ble Court. No harm or prejudice would be caused to the defendant who are in possession of the land in case the delay in filing the appeal is condoned and the applicants are allowed to fight the case on merits.” 6. The respondent has vehemently opposed this application by stating as under:- “That the contents of this para of application are factually incorrect. As a matter of fact Sh.Tula Ram, the General Power of Attorney of the appellants/ applicants was aware of the decision of learned Additional District Judge, Mandi camp at Karsog. The record of copying agency at Mandi reveals that application for certified copy of judgment of learned Additional District Judge, was submitted on behalf of Sh.Puran Chand on 12.9.2007. Thereafter certified copy of the said judgment was received by Sh. Tula Ram, GPA of the applicants/ appellants on 24.9.2007. The stand taken in this para of the application that General Power of Attorney of appellants/ applicants met their counsel Sh. D.C.Guleria at Mandi in June, 2009 and learnt that the appeal had been dismissed on 5.9.2007 is false to the personal knowledge of the General Power of Attorney, who has filed an affidavit in support of the application. It appears that the General Power of Attorney of the applicant again applied for certified copy of judgment and decree on 26.6.2009 and this was done by him with the sole purpose to make out a ground for condonation of delay in filing the appeal, which is otherwise barred by limitation. It is submitted that Sh.Tula Ram, GPA of the applicants/ appellants was in public employment at Shimla and has shifted to karsog after his retirement. It is denied that the GPA is a layman. It is further submitted that the applicants/ appellants have come forward with false averments and they have not shown any sufficient cause for not preferring the appeal within the prescribed limitation. Therefore, the application for condonation of delay is not maintainable.” 7. In rejoinder, the plaintiffs have dispusted the fact that another certified copy of the judgment was either applied for by Shri Puran Chand or obtained by Shri Tula Ram. 8. Normally Courts are lenient in condoning the delay. Now the grounds set out by the plaintiffs, on the face of record, are palpably false and incorrect. The present appeal has been filed through Shri Tula Ram, (general power of attorney) who actually obtained the certified copy of impugned judgment and decree from the Court below on 6.10.2007. To a nacked eye the signatures appears to be same. In this background the explanation furnished by the plaintiffs cannot be said to be correct. Even the affidavit of Shri D.C.Guleria, Advocate, has not been placed on record. Appellant is not entitled to the discretionary relief. 9. For the aforesaid reasons, I find no reason to condone the delay and the application is accordingly dismissed. Consequently, the appeal is also dismissed. 12th May, 2010 (Sanjay Karol) (C) Judge.