Hemraj v. Anant Ram & Ors.

CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Suresh Singla, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.6154-C of 2010 This is an application for condonation of delay of 683 days in refiling the accompanying appeal challenging the judgment and decree dated 3.12.2007 passed by the Additional District Judge, Ropar. As per the averments made in this application, after deducting the time spent for obtaining the certified copy of the impugned judgment and decree, the appeal could have been filed in this Court within limitation upto 5.3.2008 and the same was filed on 3.3.2008 well within the limitation period. Vide note dated 15.4.2008, Registry of this Court raised certain objections and after complying the same, the appeal was refiled on

1.7.2008. However, certain other objections were raised vide note dated

11.8.2008 by the Registry and the appeal was refiled after removing those objections on 18.5.2010 i.e after a delay of 683 days. The condonation of the aforesaid delay of 683 days in refiling the appeal has been sought to be explained by stating that in the second week of August, 2008, parties to the lis with the intervention of the respectables of the village had settled the CM No.6154-C of 2010 and RSA No.1973 of 2010 2 matter amicably with a promise to get the compromise effected in writing within 2-3 months and, thereafter, he again visited the house of the respondents 2-3 times. However, the only reply he received was that they were not available. It is the further case of the applicant-appellant that he requested the respondents many times that the mutual understanding arrived at between the parties be got reflected in the revenue record. However, the respondents kept on postponing the matter on one pretext or the other and it was only on 27.4.2010, when he came to know that the respondents were making efforts to sell the land in question and ultimately, on 15.5.2010 refused to fulfill the oral compromise arrived at between the parties and in these circumstances, the appellant was left with no other remedy except to approach this Court by refiling the appeal. Thereafter, on

16.5.2010, the appellant contacted his counsel and instructed him to refile the appeal which was filed on 18.5.2010 and thus, according to the appellant, for the aforesaid reasons, which were sufficient and good reasons, the delay be condoned in refiling this appeal as the delay had occurred in bona fide and in good faith. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court Volume-5 (hereinafter referred to as “the Rules”), deals with the limitation for filing the appeal which reads as under: “5. Amendment – (1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, 40 days in the aggregate, to be fixed by him any amendment 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 CM No.6154-C of 2010 and RSA No.1973 of 2010 3 sub-rule (1) it shall be listed for orders before the Court.” In view of the aforesaid rule, the returned appeal after removal/rectification of the objections, is required to be re-filed within 10 days. However, the period can be again extended after the expiry of 10 days for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate. It is well settled that rigour of limitation must apply where the statute so provides. After relying upon the decision of the Hon'ble Supreme Court in P.K. Ramchandran v. Sate of Kerala (1997) Supreme Court Cases 556, this Court in Krishan Dev Dhiman v. Mahesh Bhatia 2009 (1) RCR (Civil) 229 held as under: “It is settled law that rigour of limitation must apply where the statute so provides. Limitation cannot be condoned on the ground of compassion or equitable considerations or where the party seeking condonation appears to be callous or negligent.” In the aforesaid case, condonation of delay of 753 days in refiling the appeal was sought to be condoned. Now the only question required to be decided is (i) Whether there is sufficient cause to condone the delay. It is well settled that it depends from case to case whether in given circumstances, sufficient cause has been established or not? In the present case, from the narration of facts as aforesaid, it is established on record that non-filing of the appeal after removing the objections was a conscious and deliberate decision of the appellant on the alleged understanding that the matter has been compromised. Moreover, CM No.6154-C of 2010 and RSA No.1973 of 2010 4 the stand taken by the appellant has remained uncorroborated from any other document/evidence. Even the averments made in this application are general in nature, no specific date of alleged compromise arrived at between the parties has been mentioned. Even the appellant had not mentioned any of the dates on which he visited the respondents to make a request for effecting compromise in writing or acting upon the alleged compromise. Even the details of the respectables of the village and other relatives, who settled the matter amicably between the parties, has not been given. In spite of the averment that alleged compromised was got effected by the intervention of respectables and relatives and was to be acted upon after 2-3 months, the applicant never approached them thereafter to get the needful done and even after the refusal of respondents to honour the alleged oral agreement. Thus, the stand of the applicant- appellant has remained unsubstantiated. For the reasons recorded above, I find no merit in this application and the prayer of the applicant-appellant for condonation of delay of 683 days in refiling this appeal is rejected. RSA No.1973 of 2010 In view of the dismissal of the application for condonation of delay in refiling the appeal, the main appeal is also dismissed. May 21, 2010 (RAKESH KUMAR GARG) JUDGE