Punjab-Haryana High Court
Dr. B.M. Singh vs . State Of Haryana And Others on 23 January, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
CM Nos.5665-5666 of 2011 in [1]
Review Application No.57 of 2011 in
LPA No.82 of 1994
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM Nos.5665-5666 of 2011 in
Review Application No.57 of 2011 in
LPA No.82 of 1994
Dr. B.M. Singh Vs. State of Haryana and others
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Dr. B.M.Singh, applicant in person.
Mr. B.S.Rana, Addl. A.G., Haryana.
Mr. Rajdeep Singh Cheema, Advocate.
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RAKESH KUMAR JAIN, J.
The applicant filed Review Application on 04.06.2010 in LPA No.82 of 1994 decided on 03.03.2010. After examining the Review Application, in the first instance, the following objections were raised by the Registry on 16.08.2010:-
"1. Affidavit be filed;
2. Index not complete;
3. Page marking not according to the index;
4. 2nd set be filed;
5. Application not within limitation; and
6. Copy be supplied to opposite parties."
The applicant re-filed the Review Application on 15.09.2010, with the following endorsements:-
"1. Affidavit filed;
2. Index is now complete;CM Nos.5665-5666 of 2011 in [2]
Review Application No.57 of 2011 in LPA No.82 of 1994 *****
3. Page marking now is as per index;
4. The second set has been filed;
5. Application for review is within the period of limitation; and
6. Copy of the Review Application will be supplied by way of process to the opposite parties when notice in the Review Application is issued by the Hon'ble Court;
7. Copy of the Review Application has been supplied to opposite party No.1, i.e., the State of Haryana."
On 08.12.2010, again the objection was raised by the Registry to the following effect:-
"Objection regarding limitation is not complied. Application is barred."
Thereafter, the applicant filed the Review Application on 11.11.2011 with an endorsement "kindly put up as it is. Objection rectified and re-filed".
Since the Registry has raised the objection that the Review Application has been filed after a delay of 45 days, therefore, the applicant filed application bearing C.M. No.5665 of 2011 under Section 5 of the Limitation Act, 1963 (hereinafter referred to as the "Act") for condonation of delay of 45 days in filing of the Review Application and C.M. No.5666 of 2011 for condonation of delay of 412 days in re-filing of the Review Application.
Both the applications were heard.
Before we proceed further, it would be relevant to refer the the Rule regarding re-filing, which is stipulated in Rule 5 of CM Nos.5665-5666 of 2011 in [3] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** Chapter I, Part `A' of the High Court Rules and Orders, Volume-5, 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, and 40 days in the aggregate, to be fixed by him any memorandum 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."
The aforesaid Rule was interpreted by the Division Bench of the Delhi High Court in the case of Messrs N.K. Private Ltd. Vs. Hotz Hotels (P) Ltd., ILR(1974) I Delhi 500, in which it was held as under:-
"if the memorandum of appeal is not amended and re-filed within the time allowed by the Deputy Registrar, it does not become liable to dismissal automatically. It has to be listed for orders before the Court in accordance with Rule 5(2) of Chapter 1-A, Volume V of Punjab High Court, Rules and Orders which have been made applicable to Delhi High Court. This necessarily implies that the court can in its discretion condone the delay if there is any."
Thus, according to the above, the Registry of the High Court has no competence and jurisdiction to refuse to receive an application which is re-filed after delay of more than 40 days in aggregate and it is required to be put up before the Court who has CM Nos.5665-5666 of 2011 in [4] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** the jurisdiction either to condone the delay or not, depending upon the facts and circumstances involved therein.
In the application for condonation of delay in re-filing, it has been averred that after receiving the paper from the Registry on 08.12.2010, it was inadvertently mixed up in the pending cases by the Clerk of the counsel for the applicant and remained untraceable and the applicant remained under the impression that the Review Application would come up for hearing in due course of time. It is further stated that when the Review Application did not come up for hearing for a long period of time, the applicant asked his counsel about its fate and on enquiries made by the counsel, it was revealed that the paper book of the Review Application got misplaced by his Clerk and the same is not traceable. Counsel for the applicant carried out thorough search of his office and finally the paper book of the case was traced out from one of the decided cases on 04.11.2011.
In the application for condonation of delay, it is alleged that the mistake was on the part of the Clerk of the counsel for the applicant who did not take the certified copy in time which was though prepared much earlier. In both the applications, counsel for the applicant has filed his own affidavit.
It is pertinent to mention at this stage that Article 124 of CM Nos.5665-5666 of 2011 in [5] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** the Act governs the limitation for filing of the Review Application, which reads as under:-
Description of Period of Time from which
application limitation period begins to run
124 For a review of Thirty days The date of the
judgment by a decree or order.
court other than
the Supreme
Court.
The applicant has submitted that the delay in re-filing the Review Application has been caused due to a bona fide mistake on the part of the Clerk of his counsel, otherwise the applicant has been diligently pursuing his case. In support of his submission, he has relied upon two decisions of this Court in the cases of Dinesh Kumar v. Chanderkala and another, 2011(4) PLR 211 and Babu Singh v. M.C.Ropar and others, 2001(2) PLR 747.
On the other hand, learned counsel for the respondents has submitted that the reason assigned in the application for condoning the dealy in re-filing of the Review Application is not convincing because in para 4 of the application, it is alleged that the paper book of the Review Application was mixed up with the pending cases, whereas in para 5 of the application it is alleged that the paper book was traced from one of the decided cases. It is also submitted that such a casual approach of the applicant should not be CM Nos.5665-5666 of 2011 in [6] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** promoted by condoning the delay in re-filing. In support of his case, he has relied upon two Division Bench decisions and Single Bench decisions of this Court in the cases of Asha Sharma and Ors. v. Sanimiya Vanijiya P. Ltd. and Ors., 162(2009) DLT 542; Competent Placement Services (Regd.) through its Director/Partner v. Delhi Transport Corporation through its Chairman, 2010(120) DRJ 323; Swaran Kaur and others v. Sukhdev Singh and others, CM No.8256-C-2010 in RSA-2718- 2010 decided on 06.08.2010; Gurbachan Singh v. Mastan Singh, 1984 PLR 438; Anarjit Singh Mann v. Nand Kishore and others, 2005(1) RCR (Civil) 451; Darshan Singh v. Surjit Singh, 2008(2) PLR 336; and Krishan Dev Dhiman v. Mahesh Bhatia, 2009(1) RCR (Civil) 229.
We have heard learned counsel for the parties and perused the record.
There is no doubt that as per Article 124 of the Act, the limitation to prefer an application for review is 30 days from the date of the order. The order in LPA was passed on 03.03.2010. Even according to the applicant, certified copy was applied on the same date and the certified copy was prepared after 16 days on 19.03.2010 but the same was taken by the applicant on 24.05.2010 after a substantial delay. The Review Application was thereafter filed CM Nos.5665-5666 of 2011 in [7] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** on 04.06.2010 and in the first objection on 16.08.2010, it was brought to the notice of the applicant that his application was not within the limitation as it was allegedly barred by 45 days but still, while re-filing the Review Application after rectifying the objections on 15.09.2010, it was asserted by the applicant that the Review Application is within limitation and application for condonation of delay was not filed. Consequently, again the objection was raised by the Registry on 08.12.2010 with regard to compliance of objection regarding delay but, thereafter, the Review Application was re-filed almost after a delay of 412 days on 11.11.2011 and the reason has been assigned that it was mixed up in the pending cases and traced out from one of the decided cases.
In Dinesh Kumar's case (supra), cited by the applicant, there was a delay of 371 days in re-filing. In Babu Singh's case (supra), the delay was condoned but in Asha Sharma's case (supra) and in Competent Placement Services (Regd.) through its Director/Partner's case (supra), both decided by the Division Bench of the Delhi High Court, the delay in re-filing was not condoned despite the fact that in Competent Placement Services (Regd.) through its Director/Partner's case (supra) the plea was raised by the counsel for the applicant that the case could not be filed due to her engagement in the CM Nos.5665-5666 of 2011 in [8] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** surgery of her husband.
We may hasten to add that there is no straight jacket formula for condonation of delay in re-filing as it depends upon the facts and circumstances of each case but it must be understood that a litigant, who has succeeded before the Competent Court, expects notice of the Higher Court up to a particular period of time and thereafter, he becomes supremely confident that no such case has been filed against him and the judgment in his favour has become final, but he is taken aback when he receives a notice from the Court after a long period when the case is re-filed and the delay in re-filing thereof is condoned. As a matter of fact, the litigant before the Court has a right to sit back and relax after the expiry of prescribed period of time that no case is filed against him by his opponent but these days, there is a growing tendency to file incomplete cases and then take unreasonably long time to remove the defects, even where such defects can be cured within a very short time. For example, in the present case, once the Registry had raised the objection that there is a delay of 45 days in filing of the appeal, the applicant should have filed the application for condonation of delay or should have at least explained it while removing the objection that how the application is within limitation. As a matter of fact, the applicant simply removed the objection of delay by writing one line that it is CM Nos.5665-5666 of 2011 in [9] Review Application No.57 of 2011 in LPA No.82 of 1994 ***** within limitation. Secondly, the explanation given in the application for condonation of delay in its paras 4 and 5 runs contrary to each other because in para 4 of the application, it is mentioned that the paper book of the Review Application was mixed up with the pending cases, whereas in para 5 of the application, it is alleged that it has been traced out from one of the decided cases. It is not clear whether according to the averment made in para 4, the paper book of the Review Application was placed in the pending cases or according to the averment made in para 5 of the application, it was placed in the decided cases and the said decided case was mixed up with the pending cases.
In Swaran Kaur and others' case (supra), it has been observed by this Court that it has been repeatedly accepted by the Court to be a "sufficient cause" where the paper book is collected by the Clerk or the counsel himself after the objections are put up by the Registry and inadvertently mixed up the paper book in bundle of some other cases, either admitted or decided, and there is an explanation given for recouping the said file. Although, in this case, the plea has been raised of mixing up of the paper book of the Review Application in the pending cases but the explanation of its recovery is totally unbelievable and unconvincing and clearly appears to be a concocted story.
CM Nos.5665-5666 of 2011 in [ 10 ]
Review Application No.57 of 2011 in
LPA No.82 of 1994
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Thus, we are not satisfied with the explanation given in the application to constitute "sufficient cause" for the purpose of condoning the delay in re-filing of the Review Application. Hence, the application bearing C.M. No.5665 of 2011for condonation of delay in re-filing of the Review Application is hereby dismissed, as a result whereof the application bearing C.M. No.5666 of 2011 for condonation of delay in filing of the Review Application is also dismissed. Consequently, the main Review Application itself is also dismissed.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
January 23, 2013
vinod*