CR No. 5637 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR No. 5637 of 2010 Date of decision:- 09.12.2010 Raj Kumar ....Petitioner Vs. Bir Singh and another. ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present:- Mr. Preetwinder Singh Dhaliwal, Advocate, for the petitioner. Mr. L.S. Sidhu, Advocate, for respondent No. 1. HEMANT GUPTA, J (ORAL) ****** The defendant is in revision aggrieved against the order passed by the learned First Appellate Court on 02.08.2010, whereby delay of 55 days in filing of appeal was not condoned and consequently, the application for condonation of delay was dismissed and the memorandum of appeal of the petitioner was not entertained. Plaintiffs/respondents filed a suit for permanent injunction, which was decreed on 09.09.2009. The petitioner applied for certified copy of the judgment on 22.10.2009 i.e. after expiry of period of limitation. The certified copy was prepared and was ready for delivery on 28.10.2009, but the appeal was filed on 28.11.2009. CR No. 5637 of 2010 2 Alongwith the appeal, the petitioner filed an application for condonation of delay, which has been declined by the learned First Appellate Court vide order impugned in the present petition. The learned first Appellate Court has framed the issue as to 'whether there are sufficient grounds to condone the delay'. Firstly the approach of the learned First Appellate Court to give opportunity to parties to lead evidence in an application under Section 5 of the Limitation Act is not appreciable. The question, whether such application should be decided on the basis of affidavits or the parties should be given opportunity to lead evidence, has been examined by this Court in detail in Gurdev Singh and others Vs. Major Singh and others, Civil Revision No. 1010 of 2010, wherein it has been held that such applications are required to be decided on the basis of affidavits alone. It was held to the following effect:- “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 CR No. 5637 of 2010 3 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 has to be some carelessness and negligence in conduct of the proceedings which leads to delay, but all carelessness and negligence cannot be made ground for declining condonation of delay. It is held that lack of bonafide and likelihood of some gain by delaying the proceedings, is ground for declining condonation of delay. It has been 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 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 CR No. 5637 of 2010 4 applicant, the court shall compensate the opposite party for his loss.” In view of the above judgments, the reasoning given by the learned first Appellate Court is not sustainable. The petitioner was not to gain anything by not filing the appeal against the decree for permanent injunction in time. Therefore, the order passed by the learned first Appellate Court is set aside. The delay in filing of the appeal is condoned. The matter is remitted back to the learned First Appellate Court to decide the appeal in accordance with law. Parties through their counsels are directed to appear before the learned first Appellate Court on 28.01.2011. (HEMANT GUPTA) 9.12.2010 JUDGE aj