Punjab-Haryana High Court
Sukh Sagar And Ors. vs Hem Raj And Ors. on 13 February, 1995
Equivalent citations: (1995)111PLR62
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. The present appeal has been filed at the instance of the unsuccessful plaintiffs whereby their appeal before the Additional District Judge, Hoshiarpur has been dismissed as time barred. The admitted facts of the case are as under :-
The plaintiffs-appellants filed a suit for declaration claiming their ownership to a plot situated in village Dehpur, District Hoshiarpur, on September 2, 1972. This suit was dismissed on August 17, 1974. The first appeal was filed before the Senior Sub Judge, Hoshiarpur on September 30, 1974 On October 1, 1974 the memorandum of appeal was scrutinised and it was found in order and duly registered. On January 14, 1977, however, when the appeal was being heard on merits by the Senior Sub Judge, it was found that as the value of the suit was beyond Rs. 250/- the appeal was not maintainable before him. He accordingly vide his order dated January 14, 1977, returned the memorandum of appeal to the appellants for filing the same in an appropriate court. It is the case of the appellants that January 16, 1977, being a Sunday, the appeal was duly filed in the Court of the District Judge, Hoshiarpur on the next day i.e. January 17, 1977. The appeal was allocated to the Additional District Judge, Hoshiarpur, who vide the impugned judgment dated March 27, 1979, dismissed the appeal on the grounds that the appellants had the knowledge that the value of the suit was beyond Rs. 250/- and, therefore, the appeal lay to the District Judge and the application filed under Section 5 of the limitation act was not accompanied by the affidavit and that in any case the memorandum of appeal having been returned on January 14, 1977, there was no explanation as to why the appeal had been filed on January 17, 1977.
2. Mr. G.S. Jaswal, learned counsel for the appellants has argued that through Order 41, Rule 3-A of the Code of Civil Procedure did require that an application for condonation of delay was to be accompanied by an affidavit, yet such an affidavit could be dispensed with if the facts of the case so warranted. He has argued that as the facts narrated above were on the record either judicial or administrative there was no infeasible requirement that an affidavit be filed. It was also argued that there was in fact no delay in refiling the appeal as January 16, 1977, was a Sunday and the appeal returned on January 15, 1977 by the Senior Sub Judge was filed without any further delay and, therefore, the finding recorded by the first appellate Court that there was undue delay was without any basis. He has also urged that assuming for a moment that the appeal had been filed by mistake in the Court of Senior Sub Judge but that was at the instance of the appellant's counsel and that for the mistake of the counsel the party should not suffer. In support of this plea, he has urged that even the senior Sub Judge, after scrutiny, had admitted the appeal for hearing on merits, on October 4, 1974.
3. After hearing the learned counsel for the parties, I find that the assertion made by the appellants counsel has merit. To take the last argument first and assuming for a moment that there was some lapse on the part of the appellant's counsel in filing the appeal in the wrong forum yet that would not prejudice the case of the appellants to an extent that their appeal would be dismissed as time barred as it is apparent that even the Senior Sub Judge had entertained the appeal after scrutiny on October 1, 1974. Had the Senior Sub Judge returned the appeal at the time of scrutiny, the appellants would not have been prejudiced in the manner indicated.
5. It is also true that it was the requirement of Order 41, Rule 3-A of the Code of Civil Procedure that an application for condonation of delay was to be accompanied by an affidavit. I am, however, of the view that where the facts which were required to be sworn in the affidavit in support of the application for condonation of delay, could be accurately ascertained from the Court records, either judicial or administrative, it would not be incumbent that an affidavit in support of the application for condonation of delay must also be filed. Such requirement would be dependent on the facts of each case.
6. The third argument also to my mind has force.The finding of the first appellate Court that there was a delay between the return of the memo of appeal by the Senior Sub Judge and its re-filing on January 17, 1977, is without basis. As already mentioned above, January 16, 1977, was a Sunday and the appeal was accordingly filed on January 17, 1977 without loss of any time.
For the reasons recorded above, the present appeal is allowed, the judgment of the first appellate court is set aside and it is directed that the appellants be heard by the first appellate Court on its merit. The parties through their counsel are directed to appear before that on May 16, 1995.