Himachal Pradesh High Court
Tulsi Ram @ Tulsia vs . Parveen Kumar on 14 October, 2022
Author: Virender Singh
Bench: Virender Singh
Tulsi Ram @ Tulsia vs. Parveen Kumar .
CMP(M) No. 920 of 2021 14.10.2022 Present: Ms. Atul Jhingan, Advocate, for the applicant/appellant.
Mr. Vivek Sharma, Advocate, for the respondent. Applicant, namely, Sh. Tulsi Ram @ Tulsia has filed the Regular Second Appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'the CPC') against the judgment and decree dated 27.12.2017, passed by the Court of learned Additional District Judge-II, Solan, H.P., in Civil Appeal No. 117 of 2017, titled as Tulsi Ram vs. Parveen Kumar.
2. Since the appeal has been filed after the prescribed period of limitation, as such, the application, under Section 5 of the limitation Act, has also been filed, for condonation of delay, which has been registered as CMP(M) No. 920 of 2021.
3. By virtue of this application, the applicant has sought the condonation of delay of about 4 years and 8 months, in filing the Regular Second Appeal before this Court.
4. The condonation of delay has mainly been sought on the ground that after passing the impugned judgment and decree dated 27.12.2017, the copies of the same were obtained by his counsel Sh. B.S. Dogra, Advocate and he was instructed to prepare the appeal.
5. According to the applicant, the requisite documents along with fees of the counsel were supplied/paid to Sh. B.S. Dogra, Advocate, who was not keeping good health and unfortunately, expired on 19.02.2019. ::: Downloaded on - 15/10/2022 20:03:47 :::CIS
6. Apart from this, the applicant has also pleaded the .
fact that due to the countrywide lock down, on account of Covid-19 pandemic, the applicant remained under this bona fide belief that the Courts were closed and after the partial withdrawal of the lock down in the month of June, 2020, he had again made efforts to trace the file from the office of Sh. B.S. Dogra, Advocate, by contacting his son.
7. It is his further case that after obtaining the requisite documents, he has then instructed his counsel in the month of September, 2021 and, then, the present appeal has been filed.
8. The application is duly supported by the affidavit of the applicant.
9. On notice, this application has been contested by the respondent on the ground that whatsoever allegations, which have been made in the petition, are stated to be a concocted story cooked-up by the applicant. The applicant is also stated to be a chronicle litigant, who is having a number of cases pending adjudication before this Court.
10. The other averments, which have been mentioned in the application under Section 5 of the Limitation Act, have also been controverted on the ground that the decision of the First Appellate Court has been challenged just to delay the execution petition which has been filed against the applicant.
11. In other words, it is the case of the non-applicant that when the applicant came to know about the filing of the execution petition, then he has cooked-up the story, which has ::: Downloaded on - 15/10/2022 20:03:47 :::CIS been mentioned in the application, under Section 5 of the .
12. Other allegations have also been controverted by the respondent in this case. Thus, a prayer has been made to dismiss the application.
13. The averments made in the reply, have also been supported by the affidavit of the non-applicant-Parveen Kumar.
14. In rejoinder, the factual position, as contained in the reply has also been controverted.
15. Prima facie, in this case, the explanation, which has been given for condonation of delay of more than 4 years is attributed to the fact that after the decision of the case of the First Appellate Court, the papers were handed over to Sh. B.S. Dogra, Advocate, with the instructions to prepare the appeal. In view of the fact that Sh. B.S. Dogra, Advocate, is no more in this world, this Court is of the opinion that the allegations need not to be dwelled into.
16. Admittedly, Execution Petition has been filed against him by the non-applicant, but, considering the fact that the applicant has unsuccessfully contested his appeal before the First Appellate Court, as such, he is not going to achieve anything by filing the appeal, after the prescribed period of limitation, had he not been prevented by the reasons, so stated in his application, under Section 5 of the Limitation Act. ::: Downloaded on - 15/10/2022 20:03:47 :::CIS
17. It would be apt to reproduce para-9 of the judgment .
rendered by the Hon'ble Supreme Court in case, titled as N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123, as under:-
"It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such case, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower Court."
18. In view of the above, this Court is of the view that the applicant is not going to achieve anything by not filing the appeal within the prescribed period of limitation, as such, the delay in filing the appeal has been explained to the satisfaction of this Court.
19. Considering the above facts, the application is allowed and the delay in filing the Regular Second Appeal is ordered to be condoned.
20. Application is, thus, disposed of. ::: Downloaded on - 15/10/2022 20:03:47 :::CIS
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RSA No. ___________ of 2022
21. Be registered.
22. By virtue of the order of even date, while deciding CMP(M) No. 920 of 2021, the delay in filing the present appeal has been ordered to be condoned.
23. Since, Mr. Vivek Sharma, Advocate, has put in appearance on behalf of the sole respondent, the service is complete.
24. Before proceeding further, let record of the learned Court below be requisitioned.
As prayed for, list after four weeks.
(Virender Singh) Judge October 14, 2022 (Vinod) ::: Downloaded on - 15/10/2022 20:03:47 :::CIS