Punjab-Haryana High Court
Karnail Singh vs Piara Singh And Ors. on 29 May, 2002
Equivalent citations: AIR2002P&H376, AIR 2002 PUNJAB AND HARYANA 376, (2002) 3 PUN LR 189 (2002) 3 RECCIVR 442, (2002) 3 RECCIVR 442
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This second Appeal has been filed by Karnail Sihgh, plaintiff, challenging the judgments and decrees of the Courts below, vide which the trial Court had dismissed his suit and the Lower Appellate Court had dismissed the Appeal, filed by him.
2. This Appeal was filed on 26.4.2000, within limitation. However, on the same day, it was returned by the office with the objections that the power of attorney and fair-typed copies of the judgments should be complete, the opening sheet should be filed properly and vernacular of affidavit should be attested. It was re-filed on 16.8.2000, with the remarks that the same was being re-filed, after compliance. The office again raised the objections, dated 16.8.2000 that the objections dated 26.4.2000 has still not been complied with and that application regarding delay in refiling after 40 days, should be filed. Thereafter, the Appeal was refiled on 17.5.2002 along with an application under Section 151, CPC, for "condonation of 698 days delay in re-filing the Appeal. This application was accompanied by the affidavit of Shri Naresh Kumar, Clerk to Shri Pri-tam Chand Rakra, Advocate.
3. Learned counsel for the appellant has submitted before me that since the Appeal was originally filed in this Court within the prescribed period of limitation, any delay in re-filing the Appeal would be of no consequence. Reliance has been placed on Babu Singh v. M.C., Ropar and Ors., (2001-2)128 P.L.R. 747. However, I find no force in this submission of the learned counsel for the appellant. Under Rule 5 of Chapter-1, Part 'A' of the High Court Rules and Orders, Volume-5, an Appeal which was returned by the office with the various objections, referred to above on 26.4.2000, was required to be re-filed, after removing those objections, within 40 days. The appeal was re-filed after the expiry of said period of 40 days, without any application for extending the time for -re-filing the appeal. Furthermore, even the objections, raised by the office, had not been complied with and it was wrongly stated that the Appeal was being re-filed, after compliance. The office again returned the Appeal with the objections that the earlier objections had not been complied with and secondly, necessary application for extending the time for re-filing the Appeal after 40 days, should be filed. This time, the appeal was re-filed almost after one year and nine months of the return of the Appeal, second time. While re-filing the Appeal and removing the objections, an application under Section 151, CPC, was filed, seeking condonation of 698 days delay in re-filing the Appeal.
4. Rule 5 of Chapter-1, Part 'A' of the High Court Rules and Orders, Volume -5, reads as under:-
" "5. Amendment.- (1) The Deputy Registrar may return for amendment and refilling within a time not exceeding 10 days at a time, and 40 days in the aggregate, to be fixed by him any memorandum of appeal for the reason specified in Order XLI, Rule 3, Civil Procedure Code.
(2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under Sub-rule (1) it shall be listed for orders before the Court."
From a perusal of the above, it would be clear that the Appeal was required to be re-filed within 40 days. However, in the present case, the appeal was re-filed after the expiry of 40 days and that too, without complying with the objections. The Appeal was again returned by the office This time, the Appeal was filed after more than 1 -1/2 years.
5. The authority (2001-2)128 P.L.R. 747 (supra), relied upon by learned counsel for the appellant, in my opinion, would have no application to the facts of the present case. In the reported case, the Appeal was filed against the order of the Additional District Judge, dismissing the Appeal in default, for non-appearance by anyone on behalf of the appellant. The Second Appeal was filed n this Court within limitation, but without a copy of the decree-sheet of the Lower Appellate Court. Various objections were raised by the office while returning the Appeal. After removing those objections, the Appeal was re-filed. However, the appeal was again returned back by he office with the objection to explain as to how the Appeal was within limitation. The appellant had filed an application to exempt the filing of the copy of the decree-sheet, on the ground that the decree-sheet had not been prepared. It was under those circumstances that the case was put up on the judicial side, for consideration as to whether the Appeal was maintainable without filing the copy of the decree-sheet. This Court, after hearing both the sides and considering the entire matter, came to the conclusion that since the Appeal was dismissed by the Lower Appellate Court in default the order dismissing the Appeal was only in an order and not a judgment and thus, the non-filing of the decree, was not fatal to the maintainability of the Appeal, since no decree had been prepared. It was further held that there may be delay in re-filing of the Appeal, but once the Appeal -was filed and when no decree was prepared, the subsequent delay in re-filing the Appeal, after it was returned for complying with certain objections, could not be taken into account, while computing the period of delay. In my opinion, the law laid down in this authority was on the facts of the said case and the question before the Court was as to whether the Appeal could be filed even without a copy of the decree-sheet. However, the question as to whether the Appeal was required to be re-filed within 40 days, in view of the aforesaid Rule 5, was not before this Court. Thus in my opinion, the law laid down in this authority would have no application to the facts of the present case.
6. It was then submitted before me by learned counsel for the Appellant that, in view of the peculiar facts and circumstances of the present case, the delay of 698 days in refiling the Appeal, may be condoned, especially when the application, in this regard, was accompanied by the affidavit of the Clerk to the counsel for the appellant.
7. There is considerable force in this submission of the learned counsel for the appellant. As referred to above, the Appeal was filed within limitation. The Appeal was returned by the office with the certain objections. There was delay in re-filing the Appeal. In the application under Section 151, CPC, seeking condonation of delay, in re-filing the Appeal, the point taken is that the previous Clerk namely Jai Parkash, had left the job, without informing the counsel and that he had mixed this Appeal in the decided cases and that the present Clerk, namely Naresh Kumar, with great effort, traced this case and was being re-filed and in the process, there was delay in re-filing the Appeal. It had been alleged that the delay in re-filing the Appeal, was not intentional, but was due to the aforesaid reasons. In my opinion, there is no reason to disbelieve the averments made in this application. I am further of the opinion that the cause shown is sufficient. Accordingly, the application under Section 151, CPC, seeking condonation of delay of 698 days in re-filing the appeal, is allowed and the delay is condoned.
8. Coming on merits, Karnail Singh, plaintiff, had filed a suit for declaration to the effect that he and Piara Singh, defendant No. 1, were owners in possession to the extent of 1/2 share jointly, in the land, in dispute. The plaintiff had also sought a decree for joint possession, in respect of the 1/2 share in the said land, with consequential relief of permanent injunction restraining the defendants from alienating the suit property, exceeding their share and also from dispossessing the plaintiff from his share in the suit land. In the plaint, Karnail Singh, plaintiff, had alleged that the land was originally owned by Karnail Singh, plaintiff, and Piara Singh, defendant No. 1, to the extent of 1/4 share, each, whereas the remaining 1/2 share was owned by Banta Singh. It was alleged that said Banta Singh was un-heard of and died issueless about 50-60 years back in Pakistan, without leaving any Will and that said Banta Singh had one brother, namely Ralla Singh, who was alive at the time of the death of Banta Singh or when Banta Singh was unheard of for the last about 50-60 years and that said Ralla Singh had executed the registered Will dated 4.10.1963 in favour of his two sons namely Inder Singh and Piara Singh and that said Inder Singh, before his death, had executed a registered Will dated 8.9.1972 in favour of Karnail Singh, plaintiff, and that said Inder Singh died in the year 1976 and thus, after the death of Inder Singh his 1/2 share came to the share of the plaintiff, while the remaining 1/2 share came to the share of defendant No.l, Piara Singh. The learned trial Court found that the plaintiff had failed to prove that the death took place in the year 1945-46, as alleged, and as such the death of Banta Singh would be considered to have taken place on the that date of the filing of the suit. Accordingly, the learned trial Court, vide exparte judgment and decree dated 8.1.1997, dismissed the suit. Aggrieved against the same, Karnail Singh filed an Appeal before the District Judge. The learned Additional District Judge, after hearing both the sides and perusing the record, found that Karnail Singh, plaintiff, had failed to prove that Inder Singh had executed any valid Will in his favour. It was also found that it could not be said that Banta Singh had died about 70 years back and that the presumption was that Banta Singh had died on the date on which the suit was filed i.e. 14,5.1996 and as such the trial Court had rightly dismissed the suit.
9. Learned counsel for the plaintiff-appellant could not point out any infirmity in the judgments and decrees of the Courts below, which may require interference by this Court in this second Appeal. In fact, the learned Counsel could not point out any substantial question of law, involved in this Appeal. The substantial question of law, formulated by the counsel for the appellant, as to whether the plaintiff-appellant was entitled to the extent of 1/2 share in the property, in dispute, on the basis of registered Will dated 8.9.1972, in my opinion, could not be said to be question of law, much less a substantial question of law.
In view of the above, finding no merit in the present Second Appeal, the same is hereby dismissed.