Prem Chand v. Babu Ram & Anr.

Ms. Divya Sharma, Advocate for the respondent No.1. Mr. P.L.Singla, Advocate for respondent No.2. K.C.PURI. J. This is a revision petition under Article 227 of the Constitution of India for quashing the impugned order dated 29.3.2008 passed by Mrs. Raj Gupta, learned Additional Civil Judge (Senior Division), Panchkula vide which she dismissed the application under order 39 Rules 1 and 2 of the Code of Civl Procedure (in short – C.P.C.) for grant of ad interim injunction holding that scales of balance of convenience do not tilt in favour of the plaintiff and no irreparable loss is going to be caused to plaintiff which cannot be compensated in terms of the money and impugned order dated

2.9.2009 passed by Shri Sanjeev Jindal, learned Additional District C.R. No.5707 of 2009 2 Judge, Panchkula who held that the appeal preferred by the appellant- petitioner bar by limitation and consequently dismissed the appeal holding that the same is not maintainable. The brief facts of the case are that plaintiff-petitioner has filed the suit for a decree of possession in respect of agreement to sell dated 29.12.1998 by directing defendant No.1 to execute and register the sale deed in respect of the land measuring 4 biswas as comprised in khata No.66 Min/97 Khasra No.97 (9-0), 98(1-6), 99(1-6), Kitte 3, total 3-1 to the extent of4/61 share 0-4 biswas situated at village Tangra Kali Ram, Tehsil Kalka, District Panchkula on the payment of balance sale consideration of Rs.200/- and further for declaration to the effect that the alleged sale deed dated 22.09.2005 executed by the defendant No.1 in favour of the defendant No.2 registered in the office of Sub -Registrar, Kalka at Sr.No.2129/1 dated 22.9.2005 qua the share of the defendant No.1 in the suit land is illegal, null and void not binding upon the rights of the plaintiff and the same is liable to be set aside/cancelled and further for declaration to the effect the the mutation No.925 dated 8.3.2006 sanctioned on the basis of the alleged sale deed dated 22.9.2005 is also wrong, illegal, null and void and the same is not binding upon the rights of the plaintiff and same is liable to be set aside/cancelled qua the share of the defendant No.1 in the suit land with consequential relief of permanent injunction restraining the defendants themselves or through their agents, servants or assignees from alienating the suit property by way of sale, transfer and mortgage or in any manner whatsoever and further restraining the defendants C.R. No.5707 of 2009 3 from dispossessing the plaintiff from the suit property measuring 4 biswas out of the land as described in the impugned order dated

29.3.2008. The defendants-respondents filed written statement as well as reply to the injunction application and denied all the allegations of the plaintiff-petitioner and prayed for dismissal of the application as well as suit. The learned trial Court after hearing the counsel for the parties dismissed the application for injunction. Feeling dis-satisfied with the above said order dated

29.3.2009, the plaintiff-appellant preferred the appeal before First Appellate Court . Along with the appeal, an application under Order 5 of the Limitation Act was preferred for condonation of delay of 25 days in filing the appeal, was submitted. The said application was declined by the learned Additional District Judge, Panchkula vide judgment dated

2.9.2009 and dismissed the appeal being time barred. Feeling dis-satisfied with the above said judgment dated

2.9.2008, the plaintiff-appellant preferred the present revision petition. Learned counsel for the revisionist has submitted that the lower Appellate Court has simply dismissed the appeal against the order of injunction on the point of delay in filing the appeal and has not touched the merits of the case. The petitioner is 70 years old and is suffering from diabetes mellitus and certificate of Dr.Sanjeev K. Jassal has been placed on the file showing that he remained under treatment C.R. No.5707 of 2009 4 from 29.3.2008 to 28.5.2008 on regular basis. It is contended that the Appellate Court discarded the certificate on the ground that diabetes is a curable and only one tablet a day controls the diabetes. The First Appellate Court should have condoned the delay in filing the appeal and the appeal should have been decided on merits. Learned counsel for the appellant has relied upon authorities Smt. Bhago and others vs. Kashmiro and others 2009 (4) RCR (Civil) 647 and Ashok Gupta vs. Kurukshetra University & Another2007 (1) PLJ page 583. On the other hand learned counsel for the respondent has relied upon the authority Lala Bal Mukand (Dead) byL. Its vs. Lajwanti and others AIR 1975 SC 1089. I have considered the said submissions carefully and have gone through the records of the case. The learned First Appellate Court observed that delay of 25 days in filing the appeal has not been fully explained. It has been further observed by the First Appellate Court that appellant is suffering from diabetes mellitus, which is a curable disease and as such there is no ground for condoning the delay. To support this contention, learned First Appellate Court has relied upon authority State of Haryana vs. Chandra Mani and others reported in AIR 1996 SC page 1623 and P.Ramachandran vs. State of Kerala 1997 (4) RCR (Civil) 242. It has been observed by the First Appellate Court, while relying upon the observations made in authority P.Ramachandran that law of limitation may harshly effect a C.R. No.5707 of 2009 5 particular party but it has to be applied with all its rigour when the statute so prescribed. In authority P.Ramachandran's case (supra) , there was delay of 565 days in filing the appeal and there was no explanation for filing the appeal for such a huge delay. Under those circumstances, the Hon'ble Apex Court observed that law of limitation may harshly effect a particular party and it has to be applied with all its rigour. That authority is not applicable to the facts of the present case on two grounds; firstly the reason has been given before the Appellate Court by appellant/petitioner for late filing the appeal for 25 days and secondly the delay is only for few days i.e. 25 days. Authority Smt. Bhago and others' case (supra) has held that concept of sufficient cause in condonation of short delay must receive liberal construction and would be relevant when there is long delay and remained unexplained . Authority State of Haryana vs. Chandra Mani and others' case (supra) helped the case of the petitioner. In that case, the State was the appellate and there was a delay of 109 days in filing the Letters Patent Appeal. The Division Bench of Punjab and Haryana High Court dismissed the application for condonation of delay whereas the Hon'ble Apex Court condoned the said delay. In authority Ashok Gupta's case (supra) there was a delay of eight months in filing the appeal and the same was condoned by this Court. Authority Lala Bal Mukand (Dead) by L. Its' case (supra) C.R. No.5707 of 2009 6 relied upon by the learned counsel for the respondents advanced the case of the petitioner as in that case ultimate ratio was that delay in filing the appeal was condoned. The Hon'ble Apex Court in authority Collector, Land Acquisition, Anantnag and another vs. Mst.Katiji and others reported in AIR 1987 SC page 1353 has held that Court should be liberal in condoning the delay in filing the appeal. It has been further observed that the above said message is being conveyed by the Apex Court to the Subordinate Judiciary but the message does not appeared to have percolated in the mind of the judges of Subordinate Courts. It has been further observed in the said ruling that by late filing the appeal, the petitioner will not gain anything but may have to face irk of the Court. The other observation made in the said ruling is that if an appeal is dismissed on the ground of limitation, the meritorious matters may escape consideration of the Court. So, in these circumstances, the technical approach by the First Appellate Court does not sustain the test of legal scrutiny and consequently the revision petition stands accepted and the Appellate Court is directed to re-admit the appeal and decide the same on merits in accordance with law. A copy of this judgment be sent to the trial Court for strict compliance. May 17th , 2010 ( K.C.PURI ) JUDGE C.R. No.5707 of 2009 7