Punjab-Haryana High Court
Paraminder Kaur Alias Pammi vs Darshan Singh on 1 February, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.487 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.487 of 2011 (O&M)
Date of Decision: February 1, 2011
Paraminder Kaur alias Pammi
.....Petitioner
v.
Darshan Singh
.....Respondent
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.L.S.Sidhu, Advocate
for the petitioner.
.....
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 15.9.2010, passed by learned Additional District Judge (Adhoc), Fast Track Court, Mansa, Annexure P3, vide which application filed by present petitioner-defendant under Section 5 of the Limitation Act (hereinafter to be referred as the `Act') for condonation of delay was declined.
I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Additional District Judge (Adhoc), Fast Track Court, Mansa, vide which application filed by petitioner-defendant was dismissed.
Brief facts relevant for the decision of present revision petition are that a suit for specific performance of agreement to sell dated 19.7.1999 was filed by respondent-plaintiff against present petitioner- defendant. The suit was contested by present petitioner-defendant and the same was decreed by learned trial Court vide judgment and decree dated 26.11.2008, Annexure P1. The judgment was pronounced in the presence of counsel for both the parties.
Appeal against the said judgment and decree was not filed within prescribed period of limitation by petitioner-defendant and rather an Civil Revision No.487 of 2011 (O&M) -2- application was filed by her under Section 5 of the Act for condonation of delay of 409 days in filing the appeal, which was contested by respondent- plaintiff. Learned appellate Court framed the following issues on the application and reply thereof:-
"1. Whether there are sufficient grounds to condone the delay? OPA
2. Relief."
Both the parties were afforded opportunities to adduce evidence and after hearing both the parties, the application was dismissed by leaned appellate Court vide impugned order by observing as under:-
" Admittedly the judgment and decree were passed on 26.11.2008. Copy of judgment proved that the same was pronounced in the presence of counsel for the applicant. Therefore, applicant is supposed to be in the knowledge of judgment and decree from the date it was pronounced. The applicant has sought condonation of delay for 409 days. The applicant was to explain this delay. The explanation furnished by the applicant is that she came to know about the decision when she received notice in execution. Applicant has not produced any document to prove when she received notice in execution. Respondent has placed on record copies of Zimni orders passed in execution application. These orders proved that applicant was not served till 13.3.2010. Therefore, the plea of the applicant that she came to know about judgment and decree from receipt of notice in execution stands belied from the documents placed on record by the respondent. The applicant has also pleaded that she was not informed regarding decision by her counsel. It was duty of the applicant to pursue the case and to contact the counsel for knowing fate/status of her case. In these circumstances, the conclusion is that applicant has failed to explain the delay."
It has been contended by learned counsel for the petitioner- defendant that though there was lapse on the part of petitioner-defendant in Civil Revision No.487 of 2011 (O&M) -3- not filing the appeal within prescribed limitation and, however, it is contended that there was no mala fide on her part and that appeal could not be filed within limitation as her counsel did not inform her regarding passing of decree against her and that she came to know about passing of decree against her when she received summons issued by Executing Court for execution of decree filed by respondent-decree-holder. He has also placed reliance upon a judgment rendered by a Coordinate Bench of this Court in Raj Kumar v. Bir Singh and another in Civil Revision No.5637 of 2010, decided on 9.12.2010, vide which delay of 55 days in filing the appeal was ordered to be condoned. He has also placed reliance upon N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123.
So far as condonation of delay in filing the appeal is concerned, application filed under Section 5 of the Act is to be decided on the basis of peculiar facts and circumstances of each case and there cannot be a straight jacket formula. In a recent judgment rendered by Hon'ble Apex Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, 2010(2) RCR(Civil) 284, law on the point of condonation of delay in filing the appeal has been summed up as under:-
"8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard Civil Revision No.487 of 2011 (O&M) -4- and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy 1999(2) RCR (Civil) 578: (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil 2001(3) RCR(Civil) 831: (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer 1988(1) RRR 555: (1988) 2 SCC 142, State of Haryana v. Chandra Mani 1996(2) RRR 82: (1996) 3 SCC 132, State of U.P. v. Harish Chandra 1996 (2) SCT 712: (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao 200;5:(2) RCR Criminal 414: 2005(2): RCR (Civil) 375: 2005 (2) Apex Criminal 75: (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan 2008(4) R.C.R.(Criminal) 119: 2008(4) RCR(Civil) 126: 2008(4) SCT 25: 2008(2) RCR(Rent) 234:
2008(5) RAJ 214: (2008) 14 SCC 582."
Hence, in the light of above, it is to be seen whether petitioner- appellant had offered any plausible/tangible explanation for the long delay of 409 days in filing the appeal and whether learned appellate Court was justified in rejecting the application for condonation of delay.
Civil Revision No.487 of 2011 (O&M) -5-In the present case, there is delay of 409 days in filing the appeal. Ground taken by petitioner-defendant for condonation of delay was firstly that she was not informed by her counsel about decision of the case. However, learned appellate Court has rightly placed reliance upon Bani Singh v. State of Haryana and other 2010 (3) Civil Court Cases 609 and Manjit Singh v. Director of Technical Education and Training, Punjab and others 1990 Civil Court Cases 90 for coming to the conclusion that it is not the duty of the counsel to inform his client about the status and fate of the case and rather it is the duty of petitioner-applicant to contact her counsel to know about the fate of her case. Moreover, she has not filed any application against the alleged conduct of his counsel before any authority and has not sought any action against him. Judgment was pronounced after contest and after hearing both the counsel in the presence of both the counsel.
So far as second plea taken by learned counsel for the petitioner-defendant that she came to know about passing of decree against her on receipt of summons from Executing court is concerned, it has been mentioned by learned appellate Court that she has failed to produce any document to show as to when she received the summons and however from perusal of various zimni orders passed in execution application, it is proved that petitioner-defendant was not served till 13.3.2010 and hence the said plea was also found false by learned appellate Court.
Hence, what to talk of sufficient cause, no cause whatsoever, has been made out by petitioner-defendant for condonation of delay of 409 days in filing the appeal and hence, there is nothing as to why this Court should interfere in the discretion exercised by learned appellate Court.
Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.
Hence, in view of the aforementioned facts, it cannot be said Civil Revision No.487 of 2011 (O&M) -6- that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
The present revision petition is hereby dismissed being devoid of any merit.
1.2.2011 (Ram Chand Gupta) meenu Judge