CR No. 5521 of 2010. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR No. 5521 of 2010 Date of decision:- 20.12.2010 Major Singh. ....Petitioner. Vs. State of Haryana and others. ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present:- Mr. Ashok Khubbar, Advocate, for the petitioner. Mr. Aman Chaudhary, Addl. AG, Haryana. ****** HEMANT GUPTA, J (ORAL) The challenge in the present petition is an order passed by the learned first Appellate Court on 19.03.2010, whereby delay of 29 days in filing of the appeal was not condoned and memorandum of appeal was rejected. The petitioner-plaintiff filed a suit for permanent injunction. The said suit was dismissed on 01.06.2009. An appeal against the said judgment and decree was preferred alongwith an application for condonation of delay of 29 days. Learned first Appellate Court framed issues, such as “whether there are sufficient grounds for condonation of delay in filing of the appeal and whether the application lacks of bonafide.” After recording evidence, learned first Appellate Court found that question of bonafides is not relevant and intentions of bonafides are completely alien to the controversy. It is a case CR No. 5521 of 2010. 2 of reckless delay and that negligence of the applicant is culpable and it is not worthy of condonation. I find that the approach of the learned first Appellate Court suffers from patent illegality or irregularity causing substantial injustice to the petitioner. This Court in Gurdev Singh and others Vs. Major Singh and others, Civil Revision No. 1010 of 2010, decided on 19.08.2010, has examined the question, whether the application for condonation of delay should be decided on the basis of affidavits or the parties should be directed to lead evidence. It was held that application for condonation of delay should be decided on the basis of affidavits alone. It was held to the following effect:- “The legislature, while inserting Rule 3-A in Order 41 of the Code of Civil Procedure, provided that the same shall be accompanied by an affidavit. It is, thus, intended that the application for condonation of delay is not to be tried as an independent proceeding on the basis of oral evidence, but such question should be decided on the basis of affidavit(s) alone. In terms of the provision of Order 19 of the Code of Civil Procedure, where it appears to the Court that either party bona-fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall be made authorizing the evidence of such witness to be given by affidavit. CR No. 5521 of 2010. 3 Such course could be adopted for the reasons to be recorded by the Court on its satisfaction and bona- fides of the parties desiring the production of a witness for cross-examination.” “The application for condonation of delay is not an application on which, the parties can be called upon to lead evidence. Such applications should be decided on the basis of affidavits alone. The learned first Appellate Court has failed to act judiciously while considering the application for condonation of delay of 6 days. Firstly, there was no reason to frame issues and directing the parties to lead evidence to decide the application seeking condonation of 6 days' delay in filing the appeal. Such question should have been decided on the basis of affidavits alone.” Further the Hon'ble Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC, 123 has held that there is bound to be carelessness and negligence when a party seeks condonation of delay, but such carelessness and negligence is not sufficient to deny the condonation of delay. It was held to the following effect:- “13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration CR No. 5521 of 2010. 4 to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” In the present case suit for permanent injunction filed by the plaintiff was dismissed. The plaintiff was not to gain anything by intentionally delaying the filing of appeal. In the absence of any lack of bonafides or any undue advantage by the plaintiff, the learned first Appellate Court should have condoned the delay. In view of the said fact, the order passed by the learned first Appellate Court is set aside. Delay of 29 days in filing of appeal is condoned. Consequently, the first Appellate Court is directed to decide the appeal on merits in accordance with law. Parties through their counsel are directed to appear before the learned first Appellate Court on 24.01.2011. (HEMANT GUPTA) 20.12.2010 JUDGE aj