Punjab-Haryana High Court
Mehar Singh vs Dhurender Singh And Others on 15 January, 1992
Equivalent citations: AIR1993P&H23, AIR 1993 PUNJAB AND HARYANA 23, 1992 PUNJ LJ 293, 1993 (1) REVLR 294, 1992 (1) LJR 713, (1992) CIVILCOURTC 426, (1992) 2 HINDULR 28, (1992) 2 LANDLR 282, (1992) 1 PUN LR 581, (1992) 2 RRR 114, (1992) 1 CURLJ(CCR) 581
JUDGMENT
1. The unsuccessful plaintiff-appellant has impugned the judgment and decree of the first appellate Court whereby his appeal was dismissed on the ground that the same was filed beyond limitation in this regular second appeal.
2. The facts :--
The plaintiff-appellant (hereinafter the plaintiff) and defendant-respondent No. 2 (hereinafter defendant No. 2) are real brothers, that their third brother Lal Chand died on December 1, 1973, that defendant No.1/respondent No. 1 (hereinafter defendant No. 1), son of defendant No. 2, claimed that he was the adopted son by Lal Chand deceased, that the plaintiff did not admit the factum of adoption and impugned the same in the civil suit and sought a declaration that he and his brother, defendant No. 2, were entitled to the estate of Lal Chand deceased in equal shares.
3. The suit was contested by the defendants, inter alia, on the ground that defendant Np. 1 was validly adopted by the deceased under a registered adoption deed dated Nov. 26, 1973.
4. The trial Judge held that defendant No. 1 was validly adopted by Lal Chand deceased and dismissed the suit filed by the plaintiff. The plaintiff challenged the correctness of the judgment and decree of the trial Judge in first appeal before the first appellate Court.
5. The first appellate Court did not go into the merits of the case since it found that the appeal was barred by time by one day. It was of the opinion that since no application for condonation of delay under Section 5 of the Limitation Act was moved by the plaintiff there was no escape from the conclusion that the appeal had to be dismissed being barred by time.
6. Indisputably, the trial Judge rendered the judgment and decree on Sept. 15, 1977. Application for supply of certified copies of the judgment and decree of the trial court was moved on the same day. These were ready for delivery on Sept. 23, 1977, but were delivered to the plaintiff on Sept. 27, 1977. The first appellate Court found that the time requisite for obtaining the certified copies within the meaning of Section 12 of the Limitation Act was from Sept. 15, 1977 to Sept. 23, 1977 and not from Sept. 15, 1977 to Sept. 27 1977 as claimed by the plaintiff. It found that the appeal ought to have been filed on Oct. 24, 1977 and the same was filed on Oct. 25, 1977 and was thus barred by time by one day. It did not appreciate that even an oral prayer could be made for condonation of delay if sufficient cause was made out by the plaintiff. On the facts of the instant case, it was a fit case where the first appellate Court should have exercised its discretion and condoned the delay in belated filing of the appeal. It did not appreciate that when the application for supply of certified copies of the judgment and decree of the trial court was filed by the plaintiff, no date for delivery of the copies was mentioned on the receipt issued by the copying agency after entertaining the application. The plaintiff could not visualise that the judgment and decree would be ready for delivery on Sept. 23, 1977. After preparation of copies of the judgment and decree by the copying agency, no intimation was sent to the plaintiff that the same were ready for delivery. On these proved facts, the plaintiff could legitimately ask the Court to exercise its discretion and condone the delay in belated filing of the appeal by one day. The first appellate Court refused to exercise the discretion wholly on unjustified grounds. It was not aware that even an oral prayer for condonation of delay could be made if sufficient cause was otherwise shown, which had been shown in the instant case. The first appellate Court would have been well advised to condone the delay in belated filing of the appeal by compensating the other party with costs.
Under these circumstances, I condone the delay in belated filing of the appeal on payment of Rs. 500/- as conditional costs.
7. For the reasons stated above, the appeal succeeds, the judgment and decree of the first appellate court are set aside and the first appellate Court is directed to register the appeal against its original number and dispose of the same in accordance with law expeditiously preferably within three months from the date of receipt of copy of this judgment. No costs. The respondents through their counsel are directed to appear before the Additional District Judge, Rohtak, on February 28, 1992.
8. Appeal allowed.