C.R.No.783 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.783 of 2007 Date of Decision : 01.07.2009 Smt. Santosh Aggarwal ...Petitioner Versus Harvender Singh and Another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Amit Jain, Advocate, for the petitioner. Mr. Pankaj Katia, Advocate, for respondent No.1. HEMANT GUPTA, J. (ORAL) Challenge in the present petition is to the order dated 3.10.2006 passed by the learned First Appellate Court refusing to condone delay of 20 months and 20 days in filing of first appeal against the judgment and decree passed by the learned trial Court granted decree of specific performance of the agreement to sell dated 15.9.1996. The plaintiff/respondent filed suit for specific performance of the aforesaid agreement on 6.6.1997. The defendant contested the suit taking the ground that the time was the essence of the agreement that on account of failure to the plaintiff to make the payment on the date specified, the contract stands terminated and the earnest money forfeited. The learned trial Court decreed the suit on 31.5.2004. The appeal against the aforesaid judgment was presented alongwith an application for condonation of delay of 20 months and 20 days. The said application was declined for the reasons that the petitioner has failed to show that C.R.No.783 of 2007 2 despite exercising due diligence, she could not filed the appeal in time. The petitioner has sought condonation of delay in filing of appeal on the ground that she is residing at Hisar and is a lady and was not able to attend the Court on every date of hearing. She was informed by the Clerk of her Counsel that the case was decided in her favour. She came to know regarding the decision of the case when she received summons in the execution proceedings. The appellant has contested the suit which remained pending for almost 7 years. The suit is for specific performance of the agreement and in respect of property at Gurgaon, which is valuable. It is not believable that owner of the property would not be interested in filing of appeal against the judgment and decree passed by the trial Court in such contentious matter, which was contested by the petitioner for 7 years before the trial Court. In this background, the stand of the petitioner that she was informed that case has been decided in her favour, but she came to know about the decision of the suit against her on receipt of execution, merits acceptance. By filing appeal after delay, the petitioner was not to gain anything. The delay in filing of appeal was at her own peril. Therefore, it cannot be said that there was any mala fide of the petitioner not to file appeal within the period prescribed. The Hon'ble Supreme Court of India in N. Balakrishanan Vs. Krishnamurthy, AIR 1998 SC 3222, has held to the following effect :- "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 C.R.No.783 of 2007 3 against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration 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." In view of the above, the order dated 3.10.2006 passed by the learned Addl. District Judge, Gurgaon is set aside. Delay of 20 months and 20 days in filing of appeal is condoned. The learned Appellate Court is directed to decide the appeal on merits in accordance with law at the earliest. Parties are directed to appear through their counsel on 10.8.2009 before the learned Appellate Court for further proceedings in accordance with law. 01.07.2009 (HEMANT GUPTA) Vimal JUDGE