Punjab-Haryana High Court
Rewati Devi W/O Dalip Singh S/O Madan Lal vs Ram Parshad S/O Devkaran R/O Jhajjri ... on 17 August, 2009
C.M. No. 1460-C of 2007 in RSA No. 509 of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.M. No. 1460-C of 2007 in
RSA No. 509 of 2007
Date of Decision: 17.08.2009
Rewati Devi w/o Dalip Singh s/o Madan Lal, r/o
Jhajjri Gate, Farrukh, Nagar, Ward No.2, District
Gurgaon.
... Applicant/Appellant
Versus
1.Ram Parshad s/o Devkaran r/o Jhajjri Gate, Ward
No.2, Near Kamal Cinema, Farrukh Nagar, Tehsil
and District, Gurgaon.
2.Gram Panchayat, Farrukh Nagar, through its
Administrator, VD & PO, Farrukh Nagar.
...Respondents
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Rajiv Sharma, Advocate,
for the applicant/appellant.
Mr. Narender Kumar Sharma, Advocate,
for respondent No. 1.
Respondent no.2 ex-parte.
SHAM SUNDER, J.
* * * * This application under Section 151 of the Code of Civil Procedure, for the C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -2- condonation of delay of 630 days, in re- filing the appeal, has been instituted by the applicant/appellant.
2. According to the applicant/ appellant, his suit for permanent injunction was dismissed. He preferred an appeal in the Court of District Judge, which was also dismissed. Feeling aggrieved, he filed Regular Second Appeal, which was returned to him with certain objections, by the Registry. After the return of the appeal, the same was re- filed on 26.09.2005. It was stated that the Registry again raised objections and returned the paper-book. The Counsel for the applicant/appellant wrote a letter to the applicant/appellant about the objections, raised by the Registry.Somehow the applicant/appellant, did not receive the same, and due to the communication gap, she could not contact the Counsel. It was further stated that the paper- book of the appeal was mis-placed, in the office of the Counsel; that the same was found in some other brief, on 16.01.2007; and that on account of that reason, the appeal could not be re-filed, in time.
C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -3- It was further stated that the delay, in re-filing the appeal, was neither intentional, nor deliberate, but due to the facts and circumstances explained above. Accordingly, the prayer, referred to above, was made.
3. No reply to the application for condonation of delay, in refiling the appeal, was filed, by respondent no.1.
4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.
5. The Counsel for the applicant/appellant, reiterated the grounds, taken up in the application, for condonation of delay, in re-filing the appeal, at the time of arguments. He also, in addition, stated that, the applicant/appellant, was not to gain anything, by not re-filing the appeal, in time.
6. On the other hand, the Counsel for respondent No. 1, submitted that the law of limitation, is required to be applied with all its rigor. He further submitted that no compassion or equity is required to be shown, in the matter of condonation C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -4- of delay. He further submitted that, since no sufficient cause, was constituted, for condonation of such a long delay, the application, be dismissed.
7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the application, deserves to be dismissed, for the reasons to be recorded, hereinafter. It is to be seen, as to whether, in view of the averments contained, in the application, under disposal, a sufficient cause is constituted for condonation of delay of 630 days, in re-filing the appeal, and, whether the law of limitation is to be enforced with all its rigor or the question of limitation has to be taken, as a mere formality. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court, Volume-5 (hereinafter referred to as "the Rules"), deals with the limitation for re-filing the appeal which reads as under:-
"5 Amendment-(1) The Deputy Registrar may return for amendment and re-filing within a time not exceeding 10 days at a time, 40 days in aggregate, C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -5- to be fixed by him any amendment of appeal for the reasons 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."
8. In view of the aforesaid Rule, the returned appeal after removal/ rectification of the objections, is required to be re-filed within 10 days. However, the period can again be extended after the expiry of 10 days, for another 10 days, and, so on, and, in any case, not exceeding 40 days in the aggregate.
9. In the application, under disposal, the grounds taken up for condoning the delay of 630 days, in re- filing the appeal, against the judgment and decree of the Court below, dismissing the suit of the plaintiff/ appellant for permanent injunction were that after the objections were raised by the Registry, there was communication gap between the Counsel for the applicant/ appellant and the applicant; and that the paper book of the appeal was mixed with some other brief and when, ultimately, it was traced, C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -6- the appeal was re-filed. The question arises, as to whether such grounds taken up, in the application for condonation of delay of 630 days in re-filing the appeal, constitute sufficient cause or not. In the application, under disposal, it was not mentioned, as to when the communication was sent to the applicant/appellant, after the receipt of the paper-book of the appeal with objections, from the Registry. It was also not mentioned as to whether, the communication had been sent through Registered Cover or through ordinary post. There is nothing in the application, under disposal, as to what efforts were made, to trace the paper-book of the appeal, which was returned with objections, by the Registry.There is also nothing,in the application, that the applicant/ appellant, ever made any enquiries, from the Counsel, as to whether, the appeal had been re-filed, and, if not, what was the cause thereof. It means that the applicant/ appellant and his Counsel did not at all bother about re-filing of the appeal. They were completely negligent.
C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -7- They adopted callous and negligent approach, in the matter of re-filing the appeal after a long delay of 630 days. The averments contained, in the application, under disposal, thus, do not constitute any sufficient cause, for the condonation of delay of 630 days in re-filing the appeal. It is settled principle of law, that the rigour of limitation must apply, where the statute so prescribes. Limitation cannot be condoned, on the basis of compassion or equitable considerations, or where the party seeking condonation, appears to be callous or negligent. This view of mine, is supported by P.K. Ramchandran Vs. State of Kerala and another (1997) 7 SCC, 556, wherein, it has been held, as under:-
"The law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside.
Consequently, the application for condonation of delay filed C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -8- in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time."
11. In Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd., (2004) 3 SCC, 250, the Apex Court, held as under:-
"21..........It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate Court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be in a valid or competent appeal."
This is a case of total callousness and negligence, on the part of the appellants/applicants. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -9- facts of the instant case. In this view of the matter, no ground, whatsoever, is made out, for condonation of delay of 630 days, in re-filing the appeal.
12. The Counsel for the applicant/appellant, however, placed reliance on Karnail Singh v. Piara Singh, 2002(2) R.C.R. (Civil) 442, State of Bihar v. Kameshwar Prasad Singh, AIR 2000 (SC) 2306 and Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao,2002(2) RCR (Civil) 337, in support of his contention, that power to condone the delay, has been conferred upon the Courts, to enable them, to do substantial justice, and to apply the law in a meaningful manner to sub-serve the ends of justice. In Karnail Singh's and State of Bihar's cases (supra) sufficient cause had been shown, by the applicant, in filing or re-filing the appeal and under these circumstances, it was held that he was entitled to the condonation of delay. In Ram Nath Sao @ Ram Nath Sahu's case (supra) it was held that the explanation furnished should not be rejected, when stakes are high and arguable points are C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -10- involved. Since no sufficient cause has been shown by the applicant/appellant in re-filing the appeal after 630 days of delay, no help can be drawn, by the Counsel for the applicant/appellant from Karnail Singh's and State of Bihar's cases (supra). Even the ratio of law, laid down in Ram Nath Sao @ Ram Nath Sahu's case (supra) , is not applicable to the facts of the instant case. There are concurrent findings of fact, recorded by the Courts below, dismissing the suit of the plaintiff, for permanent injunction. No high stakes or arguable points or substantial questions of law, are involved, and, as such, it could not be said that if delay is not condoned, the applicant/appellant shall suffer an irreparable loss. In this view of the matter, the submission of the Counsel for the applicant/appellant, being without merit, must fail, and the same stands rejected.
13. For the reasons recorded above, the application for condonation of delay of 630 days, in re-filing the appeal, is C.M. No. 1460-C of 2007 in RSA No. 509 of 2007 -11- dismissed, and consequently, the Regular Second Appeal, is also dismissed, being barred by time.
17.08.2009 (SHAM SUNDER) dinesh JUDGE