Himachal Pradesh High Court
Dr. Rakesh Dhiman vs Sh. Rajesh Gupta And Others on 11 May, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMP(M) No. 576 of 2014 in
.
RSA No.______of _____
Decided on: 11th May, 2015
Dr. Rakesh Dhiman .......Appellant.
Versus
Sh. Rajesh Gupta and others ...Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1
For the appellant: Mr. Deepak Kaushal, Advocate.
For the respondents: Mr. Nipun Sharma, Advocate for
respondent No. 1.
Mr. Pushpinder Jaswal, Dy. A.G for
respondents No. 2 and 3.
Dharam Chand Chaudhary, Judge (Oral)
Appellant-defendant No.3 is in second appeal. He is aggrieved by the judgment and decree passed by learned Additional District Judge, Sirmour in Civil Appeal No. 2-N/13 of 2009 on 20.09.2012 whereby the judgment and decree passed by learned Civil Judge (Senior Division), Sirmour at Nahan in Civil Suit No. 185/1 of 2002 has been partly reversed.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:09:05 :::HCHP 22. The appeal is time barred and is accompanied by the present application under Section .
5 of the Limitation Act. There is delay of one year, 2 months and four days occurred in filing the main appeal.
The explanation as forthcoming reads as follow:
"4. That it is pertinent to mention here that the learned counsel representing the applicant before the Ld first appellate court sent a letter to the applicant informing him about the decision of the Ld appellate court which was unfortunately never received by the applicant. It was only in the month of March, 2013 that the applicant was apprised of the decision by the ld counsel at Nahan.
That it is further submitted that the applicant received the copy of the judgment in March, 2013 after which he approached another counsel in Shimla Distt for filing regular second appeal. That the applicant after supplying the ld counsel with the requisite documents and the copies of the judgment of both the Ld courts below for filing the regular second appeal left for Paonta Sahib. That in the month of October the applicant came to Shimla to inquire about the case and found out that the counsel engaged for ::: Downloaded on - 15/04/2017 18:09:05 :::HCHP 3 the brief was no longer practicing in Shimla and after speaking to the counsel .
telephonically managed to get hold of the original documents supplied to the counsel in the month of March, but the certified copy of the judgment and decree of the Ld trial court was not found. That the applicant thereafter had to again apply for the copy of the judgment of Ld trial court on 07-12-2013 which was received on 17-12-2013 and after which the applicant contacted the present counsel in Shimla in the last week of the month of January, 2014 but there were winter vacations in the Courts and the applicant could not meet the said counsel as he was out of station. Thereafter, the applicant came again and met the counsel in the last week of February, 2014 and gave the documents to the present counsel to prepare and file the present appeal. Thereafter, the appeal is prepared and filed in the 1st week of March, 2014 by the present counsel. Due to these reasons the applicant could not filed the present appeal within time and the present appeal is barred by limitation of two months and four days."::: Downloaded on - 15/04/2017 18:09:05 :::HCHP 4
3. The non-applicant/respondent No. 1 when put to notice has contested the application. His stand, in .
a nut-shell, is that there is in-ordinate delay of about two years in filing the present appeal and no supporting document has been attached with the application which could justify this inordinate delay. It is further submitted that the present appeal has been filed with an intention to reap the fruits of the judgment delivered by the Court below and no sufficient cause has been shown for condonation of delay.
4. In rejoinder, the applicant/appellant has reiterated the stand that it is the counsel representing him did not inform the dismissal of the appeal, he filed in the lower appellate Court.
5. On hearing learned counsel on both sides and going through the record, I find the present a case where sufficient cause has not been shown for condonation of an inordinate delay of one year, two months and four days. The explanation as set-forth in the application and also rejoinder to the reply filed on behalf of the applicant/appellant that it is learned counsel ::: Downloaded on - 15/04/2017 18:09:05 :::HCHP 5 representing him in the learned lower appellate Court, who failed to inform about the dismissal of the appeal he .
preferred. The plea so raised without any proof cannot be believed to be true. In order to succeed on this ground, the applicant/appellant should have filed affidavit of learned counsel representing him in the lower r to appellate Court in this regard. No such proof, however, could be produced, irrespective of more than sufficient opportunities granted for the purpose. On the other hand, expiry of the period prescribed for filing an appeal against the judgment and decree under challenge has accrued a valuable right in favour of the non-
applicants/respondents. Such right cannot be taken away without the applicant having shown sufficient cause, warranting the condonation of delay. It is well settled that the law of limitation may be harsh to a party, however, has to be applied with all rigor and the delay should only be condoned in a case where sufficient cause is found to have been shown.
6. On merits also, having gone through the record the appellant-defendant has failed to prove his ::: Downloaded on - 15/04/2017 18:09:05 :::HCHP 6 case that he was not negligent in performing his duties while posted as Medical Officer at Civil Hospital, Paonta .
Sahib and has given invalid treatment to the respondent-plaintiff. Therefore, learned appellate Court seems to have not committed any illegality or irregularity while partly allowing the appeal. Similarly, the judgment and decree passed by learned lower appellate Court also seems to be neither illegal nor unsustainable.
In view of what has been said hereinabove,
7. the applicant/appellant has failed to explain the delay of one year, two months and four days as occurred in filing the appeal. The application being devoid of any merits is, therefore, dismissed. Consequently, the appeal and the pending application(s), if any, shall also stand dismissed.
May 11, 2015 (Dharam Chand Chaudhary)
(naveen) Judge
::: Downloaded on - 15/04/2017 18:09:05 :::HCHP