Rajasthan High Court - Jaipur
Jawala Prasad vs Addi District Judge And Anr on 12 May, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 8786/2010 S.B. Civil Misc. Stay Application No. 2343/2010 (Jwala Prasad V/s. Addl. District Judge [Fast Track] No.1, Bharatpur & Anr.) Date of Order :: 12th May, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Rahul Kamwar, counsel for the petitioner. BY THE COURT:
By way of the instant writ petition, the petitioner has impugned the order dated 5th May, 2010, whereby the learned District Judge (Fast Track), No.1, Bharatpur found the delay to be proper and reasonable in filing the appeal and condoned the same.
2. Heard learned counsel for the petitioner and carefully perused the relevant material on record.
3. Learned counsel for the petitioner canvassed that initially the suit was decreed ex-parte. The respondent-defendant, there being service of notice on him, did appear in the court and when the execution proceedings commenced against him, he filed the appeal against the judgment and decree dated 18th April, 2009 passed by the Civil Judge (JD), Bharatpur. Learned counsel further canvassed that the learned Appellate Court did not record any ground for condoning the delay nor observed as to how the delay was proper and judicious. He cited one judgment of Hon'ble Apex Court delivered in the case of P.K. Ramchandran V/s. State of Kerala & Anr. reported in AIR 1998 Supreme Court 2276, in support thereof.
4. Having considered the submissions made by the learned counsel for the petitioner and carefully perused the relevant material on record, it is noticed that albeit, the appeal was filed against the judgment and decree passed by the Civil Judge (JD), Bharatpur after a delay of approximately one year, however, the respondent-appellant mentioned the reasons of filing the delayed appeal in his application filed under Section 5 of the Limitation Act. It was recorded in the application that the respondent came to know about the judgment and decree having been passed by the learned Civil Judge only on 3rd April, 2010, when he obtained the certified copy of the judgment and decree from the court. He applied for a certified copy of the judgment and decree because the decree holder had announced in the village that in a short time, the land of the petitioner-defendant shall be publically auctioned.
5. It is not disputed that the petitioner ought to have filed an appeal against the said judgment and decree before the Appellate Court and if delay is caused in filing such appeal, he is expected to explain each days' delay. It is also not disputed that the explanation with regard to filing delayed appeal must be proper and judicious, but at the same time, if for one or the other reason, the delay in filing the appeal is caused by the appellant then undeniably and undisputably, the appellant must not be deprived of seeking justice only on account of delay. There is no ground on record to disbelieve this fact that the fact of judgment and decree having been passed by the learned lower court came to respondent nos. 2's knowledge only after 30th March, 2010. Unless, this fact is rebutted by the petitioner, the statement of respondent no. 2 shall be deemed to have been true. It is true that the impugned order dated 5th May, 2010 is not speaking and reasoned order, however, it is an order with regard to condoning the delay in filing the appeal only and not the judgment passed in any appeal. Hence, I do not find any ground so as to interfere with the impugned order and the writ petition being bereft of any merits deserves to be dismissed.
6. For the reasons stated above, the writ petition stands dismissed, accordingly.
7. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands disposed of, accordingly.
(MAHESH BHAGWATI),J.
Mak/-
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