RSA No. 469 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 469 of 2009 (O&M) Date of Decision: November 03, 2009 Sheo Narain and another ...........Appellants Versus Bhoop Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.N.D.Achint, Advocate for Mr.R.C.Chauhan,Advocate for the appellants. ** Sabina, J. Plaintiffs filed a suit for permanent injunction. The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Gurgaon vide judgment and decree dated 28.2.2007. Aggrieved by the same, the plaintiffs preferred an appeal against the said judgment and decree along with an application for condonation of delay in filing the appeal. Vide the impugned judgment and decree dated 16.5.2008, the application for condonation of delay as well as the appeal was dismissed on merits by the Additional District Judge, Gurgaon Hence, the present appeal by the plaintiffs. The facts of the case, as noticed by the Additional District RSA No. 469 of 2009 (O&M) 2 Judge in paras 2 and 3 of its judgment, read as under:- “ 2. Brief facts of the case, as pleaded in the plaint, are that Moti Ram, father of the plaintiffs and defendant No.1 and his real brother Setia defendant No.2 were co-owners in possession to the extent of ½ share in the total land measuring 42 kanals 2 marlas, situated in village Birhera, Tehsil Farrukhnagar, District Gurgaon, detailed in para No.1 of the plaint. After death of Moti Ram, plaintiffs and defendant No.1 inherited his 1/6th share each. Defendant No.1 allegedly got the share of Setia by way of a civil court decree which was challenged by his (Setia) daughters. There existed a joint tube well having electricity connection bearing No. M-120 AP in the name of Setia, as per policy of the DHBVNL and the suit land initially owned by Moti Ram and Setia was being irrigated by it even after death of Moti Ram. Except this joint tube well there was no other source of irrigation. Since in the civil suit titled `Santra vs. Bhoop Singh', filed by the daughters of Setia challenging the aforesaid civil court decree, the plaintiffs supported Santra etc., the defendants got annoyed and started interfering in their right of use of the said tube well, resultantly, they were unable to irrigate their crops. They requested the defendants to desist from their illegal and unlawful activities but of no avail, hence the suit. 3. The defendants in their joint written statement took various preliminary objections vix cause of action, locus standi, estoppel, maintainability, mis-joinder and non-joinder of necessary parties, concealment of material facts and the suit was RSA No. 469 of 2009 (O&M) 3 liable to be stayed u/s 10 CPC. On merits, it was denied that the tube well in question was joint of the parties, rather the same was exclusively owned and possessed by Setia in whose name the electricity connection thereof existed. It was also denied that the plaintiffs and defendant No.1 had become owners in possession of the share of Moti Ram after his death or that same was being irrigated from the tube well in question or that they had no other source of irrigation. Defendant No.1 was the exclusive owner in possession of the tube well and the electricity connection, the same having been transferred in his name by Setia. Civil Suit titled `Bhup Singh vs. Santra, Sheonarain, Mangal and SDO DHBVNL, Farrukhnagar, in respect of the tube well in question was pending decision in the court of Sh.J.R.Duggal, Civil Judge (Senior Division), Gurgaon,therefore, the present suit was liable to be stayed under Section 10 CPC. In the said suit, the defendant-SDO DHBVNL had given admission statement regarding transfer of the electricity connection of the tube well in the name of defendant No.1. Denying all other allegations,dismissal of the suit with costs has sought.” On the pleadings of the parties, the following issues were framed:- “1.Whether there exists a joint tube well in the suit land bearing connection No. M-120AP?OPP 2.Whether the plaintiffs are entitled for relief of permanent injunction?OPP 3.Whether the suit of the plaintiffs is liable to be stayed under RSA No. 469 of 2009 (O&M) 4 Section 10 CPC ?OPD 4.Whether the plaintiffs have no cause of action to file the present suit ?OPD 5.Whether the plaintiffs have no locus standi to file the present suit ?OPD 6.Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 7. Relief.” After hearing the learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The suit filed by the plaintiffs was dismissed on 28.2.2007. However, the certified copies of the judgment and decree were applied on 23.8.2007 and,thereafter, the appeal was filed. The appellants-plaintiffs failed to establish that the delay in filing the appeal was not deliberate or mala fide. Although a liberal approach is required to be adopted while dealing with an application for condonation of delay yet the appellants were required to atleast establish that the delay had not occurred deliberately. Rather in the present case, appellants-plaintiffs failed to explain as to why they could not file the appeal within the prescribed period of limitation. Since the application for condonation of delay in filing the appeal was dismissed, the appeal was liable to be dismissed being time barred. The appellate Court was not required to give a finding on merits of the case. The plaintiffs had not been vigilant in pursuing their case. Even before the trial Court, they had not led any evidence despite sufficient opportunities and their evidence was closed by order and consequently, the suit filed by RSA No. 469 of 2009 (O&M) 5 them for permanent injunction was dismissed. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 03, 2009 arya