2010. Swaran Kaur & Ors. v. Sukhdev Singh & Ors.

it was ordered that the plaintiffs shall be entitled to get the sale deed executed through Court. The defendants filed first appeal by affixing requisite court fee but the first appeal was also dismissed by the learned District Judge, Faridkot, vide his judgment and decree dated 14.02.2006. According to the decree of the Appellate Court, the court fee required for filing of second appeal was Rs.4,200/-. Aggrieved against the judgment and decree of both the Courts below, the defendants filed Regular Second Appeal in this Court on 31.05.2006. At that time, the requisite court fee was not affixed with the memo of appeal, rather an application, i.e. CM No.8255-C of 2010, was filed under Section 149 read with Section 151 of the CPC for permission to make up deficiency of court fee. In the said application, it was alleged that the appellants are poor persons and are unable to pay court fee. Permission was sought to make up the deficiency in court fee within one month. It is pertinent to mention that the Registry scrutinized the paper book of the appeal and returned the same on 31.05.2006 itself by observing that “incomplete petition, returned to be re-filed”. It is also worthwhile to observe here that Regular Second Appeal was filed on 88th day, i.e. on 31.05.2006, whereas the limitation to file Regular Second Appeal is 90 days. The applicants/appellants then re-filed the appeal on 28.05.2010 after a gap CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 3 - of four years, but the appeal was returned on 29.05.2010 by the Registry of this Court with the following objections: - “1. How the court fee assessed and affixed, please give the detail on the backside of the opening sheet.

Ld. Counsel to kindly give para regarding undertaking that the deficiency of court fee will be made good as per the new amended Court Fee Act as and when the Hon’ble Court is required.” The applicants/appellants then re-filed the appeal on

15.07.2010, but it was again returned by the Registry on the same day with the following objections: - “1. Correct re-filing days should be mentioned in the petition.

2. Index should be complete regarding court fee.” The applicants/appellants then re-filed the appeal on

23.07.2010 which was again returned with the objection that “fresh up to date re-filing CM should be filed”. After removing objections, the present application for condonation of delay in re-filing has been placed before this Court for adjudication. Learned counsel for the applicants/appellants has submitted that the appeal was filed by Harbilas and his son Rajinder Kumar on

31.05.2006 which was returned by the Registry of this Court on the same day. Thereafter, Harbilas died on 07.08.2006. The applicants/appellants came to know in the month of May 2009 that the plaintiffs have filed some execution petition seeking possession of the house which is pending before the Executing Court for 24.07.2010. The inquiry was CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 4 - made about the appeal in which they came to know that the same was filed through Shri M.K.Garg, Advocate at Chandigarh. In the application, it is alleged that the applicants/appellants have now arranged the court fee and re-filed the appeal but the delay in re-filing is neither intentional nor wilful. The application for condonation of delay in re-filing is supported by an affidavit of appellant No.6. Learned counsel for the applicants/appellants has submitted that this appeal was originally filed in this Court within the period of limitation and delay in re-filing the appeal is of no consequence.

He relied upon a decision of this Court in the case of Babu Singh V. M.C.Ropar and others, 2001(2) PLR 747. He also relied upon a decision of this Court in the case of Karnail Singh Vs. Piara Singh and others, 2002(2) PLJ 261 in which delay of 698 days in re-filing of the appeal was condoned by this Court. He further relied upon a decision of this Court in CM Nos.13788 & 13789-C of 2009 and RSA No.4595 of 2009 decided on 26.07.2010 in which delay of 1371 days in re-filing the appeal has been condoned. It is, thus, submitted that in the present case, delay of 1460 days in re-filing the appeal may be condoned as it had occurred because after the death of Harbilas on 07.08.2006, applicants/appellants were not aware of the pendency of appeal before this Court. They came to know only when they received summons in the month of May 2010 from the Executing Court and after inquiry, they came to know that appeal was filed through Shri M.K.Garg, Advocate, in this Court, but has not been re-filed for want of court fee.

I have heard learned counsel for the applicants/appellants. CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 5 - Before referring to the facts and circumstances of above case, it is worthwhile to refer to the provisions of law which mandates for re-filing of appeal within a stipulated period. Rule 5 of Chapter I, Part `A’ of the High Court Rules and Orders, Volume-5, provides as under: -

5. Amendment. –(1) The Deputy Registrar may return for amendment and re-filing within a time not exceeding 10 days at a time, and 40 days in the aggregate, to be fixed by him any memorandum 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 sub-rule (1) it shall be listed for orders before the Court.

The aforesaid Rule was interpreted by Division Bench of Delhi High Court in the case of Messrs N.K.Private Ltd.

Vs. Hotz Hotels (P) Ltd., ILR(1974) I Delhi 501 in which it was held that : -

if the memorandum of appeal is not amended and re- filed within the time allowed by the Deputy Registrar, it does not become liable to dismissal automatically. It has to be listed for orders before the Court in accordance with Rule 5(2) of Chapter 1-A, Volume V of Punjab High Court, Rules and Orders which have been made applicable to Delhi High Court. This necessarily implies that the court can in its discretion condone the delay if there is any.

CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 6 - Thus, the interpretation of the above Rule is that Registrar of the Court has no competence and jurisdiction to refuse to receive an appeal which is re-filed after delay of more than 40 days in aggregate and it is required to be put up before the Court who has the jurisdiction either to condone the delay or not, depending upon the facts and circumstances of the case.

Meaning thereby, the applicants/appellants who seek condonation of delay in re-filing have to make out a case of “sufficient cause” in order to persuade the Court to exercise its discretion in his favour, however, word “sufficient cause” is not defined anywhere and it depends upon the facts and circumstances of case to case. For example, in the case of Gurbachan Singh Vs. Mastan Singh, 1984 PLR 438, delay of 85 days in re-filing the appeal was not condoned and it was observed that the applicant cannot be given undue latitude in complying with the orders of the Registry to remove defects pointed out in appeal. He cannot be allowed to move at leisure. The misuse of the provisions of re-filing requires to be checked. In another case of Anarjit Singh Mann Vs. Nand Kishore and others, 2005(1) RCR (Civil) 451, there was delay of 10 years and 27 days in re-filing the appeal. In the said case, the Registry returned the case after raising numerous objections but unfortunately the counsel, through whom the appeal was filed, was expired and the objections raised by the Registry could not be removed during a period of about six years but even thereafter, no steps were taken and the appeal was re- filed after a period of 10 years and 27 days.

This Court had held that the decree holders are entitled to sit back and feel satisfied that the dispute raised by the other party has come to an end as many years have CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 7 - passed and their rights have been settled. It would be highly unfair to the decree holders to re-open the settled issue by condoning the delay. In the case of Darshan Singh Vs. Surjit Singh, 2008(2) PLR 336, there was a delay of 616 days in refilling the appeal. In this case, in order to explain the reason for delay, it was stated that brother- in-law of the applicant was taken seriously ill with Cancer. On

11.06.2005, he was taken to Kaswan Hospital and Diagnostic Center at Bikaner. Thereafter, he remained under treatment at the Punjab Health System Corporation from 11.08.2005 to 17.08.2005. He was shifted to Malwa Super Speciality Hospital, Bathinda on 27.08.2005 and then shifted to Bansal Surgical and Maternity Hospital, Bathinda on

30.09.2005. However, he could not recover from the ailment and ultimately died on 21.01.2006. Because of the stress and strain, the appeal could not be filed within prescribed time. In the reply, it was alleged that the death of brother-in-law of the applicant had occurred on

21.01.2006, whereas the re-filing has been done after a period of one year, without explaining the delay. In this case, it was held that the rigour of Section 3(1) of the Limitation Act, 1963 (for short “the Act”) will operate wherein it is provided that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The explanation given in this case with regard to the delay was not accepted by this Court. In another case Krishan Dev Dhiman Vs. Mahesh Bhatia, 2009(1) RCR (Civil) 229, there was delay of 753 days in re-filing of the appeal. The plea taken was that Clerk of the counsel misplaced the file CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 8 - and left the service and on finding the file the same had been filed again. The Court had observed that the application filed is devoid of all necessary details and the averments were false because nothing has been mentioned as to when Clerk of the counsel misplaced the file, when he left the service and when the file was found. It was also observed that it cannot be believed that the applicant/appellant was not bothered to inquire about his case for a period of more than four years and if he had not taken any interest, it is his sheer negligence for which he cannot be rewarded. Ultimately, delay of 753 days in re-filing the appeal was not condoned and the application was dismissed. However, in the case reported as Karnail Singh Vs. Piara Singh and others (supra) the reason assigned for delay in re-filing the appeal was that previous Clerk namely Jai Parkash left the job without informing counsel and he mixed up appeal in the decided cases and the present Clerk namely Naresh Kumar traced it out and re-filed, but in the process the delay of 698 days had occurred. The statement was believed by this Court in the aforesaid case as a “sufficient cause” and delay was condoned. In the case of CM Nos.13788 & 13789-C of 2009 in RSA No.4595 of 2009, the reason for delay in re-filing was that as the earlier Clerk Mauj Deen had collected paper book of the appeal after the objections and put the same in the brief of admitted case of RSA No.4173 of 2002 by mistake and he left the job in the month of July,

2006. The counsel had changed his office and the client could not contact him. When the execution was filed, his client enquired about his appeal and after contacting Clerk Mauj Deen, the paper book could be CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 9 - found. In this case, learned counsel for the appellant had taken the responsibility of not filing the appeal within the time meant for re-filing. It was taken to be a “sufficient cause” by this Court for the purpose of condoning delay in re-filing the appeal. From the resume of facts and circumstances of the aforesaid cases, one thing is clear that this Court has repeatedly accepted it to be a “sufficient cause” where the paper book is collected by the Clerk or the counsel himself after the objections are put up by the Registry and inadvertently mixed up the appeal in bundle of some other cases, either admitted or decided, and there is an explanation given for recouping the said file.

Thus, the question of condonation of delay in re-filing is depending upon the facts and circumstances of each case and the application cannot be decided by way of strait jacket formula. In order to succeed in the application for condonation of delay in re-filing, the applicant/appellant is required to make out a strong case in his application supported by an affidavit, either of the litigant or a person who knew about the facts of the case, only then the application could succeed and not on the basis of a casually drafted application in which no particulars are given by the applicant/appellant which could constitute a “sufficient cause”. Now, examining in the facts and circumstances of the present case, the appeal was filed on 31.05.2006 by Harbilas and his son Rajinder Kumar. Rajinder Kumar was not a minor. According to the applicants/appellants, Harbilas had died on 07.08.2006. The application is totally devoid of the explanation as to why after receiving back the appeal, learned counsel for the applicants/appellants, who was having CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 10 - custody of the paper book, did not re-file it within the period of 40 days even if he had not affixed the court fee because according to him he had already filed an application under Section 149 read with Section 151 of the CPC seeking extension of time to make up the deficiency in court fee.

There is also nothing on record as to why Rajinder Kumar did not choose to meet his advocate who had filed his appeal, for over a period of four years. The act and conduct of the applicants/appellants does not inspire confidence in order to tilt the balance in his favour. It is also pertinent to mention that every now and then, the applicants are filing loosely drafted applications for condonation of delay in re-filing which could hardly disclose any reason to persuade this Court to invoke its inherent jurisdiction under Section 151 of the CPC to come to the rescue of the applicants and generally the delay is being caused due to lackadaisical attitude of the advocate who is having the custody of the court file after it is returned by the Registry because it is an experience of the Court that there are generally certain objections which could be even removed within a day but still the court files, after return by the Registry, kept on lying in the offices of the Advocates because it has become their perception that condonation of delay in refilling is a mere formality with the Court as they have to only file an application without any affidavit.

But there has to be a limit of complacency. It must be understood that a litigant, who has succeeded before the First Appellate Court, expects notice in the appeal up to a particular period of time and, thereafter, he becomes supremely confident that no appeal has been filed against him and the judgment and decree in his favour has become final, but he is taken aback when he receives a notice from this Court CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 11 - after a period of many years when the appeals are re-filed and the delay in re-filing thereof is condoned. The successful litigant before the First Appellate Court has a right to sit back and relax after the expiry of prescribed period of time that no appeal is filed against him by his opponent. Thus, keeping in view the totality of the facts and circumstances, I do not find the reasons assigned in the present case to be sufficient in order to condone the delay of 1460 days in re-filing the appeal and as such, the present application i.e.

CM No.8256-C of 2010 is dismissed, which results into dismissal of the main appeal as well. Before parting with the judgment, I would like to highlight the objections which are generally raised by the Registry in Civil matters, Criminal matters and the Writ Petitions, which are as follows: - i) Petition/application/appeal or revision/written statement and accompanied documents are not in court language and typed with black ink in double space on one side of water marked paper with quarter margin. It is not headed “in the High Court for the State of Punjab and Haryana at Chandigarh and signed with blue ink by the applicant. It is not legible. ii) Address of the parties, in case of private parties with parentage is not given and is not same in the Misc. application and index. iii) Case title of the petition does not correspond to that of impugned judgment. iv) Affidavit of the petitioner is not duly attested and in the language known to the petitioner.

All pages of it are not signed by the deponent. v) Vakalatnama is not filed with all particulars i.e., enrolment no., address of the parties etc. CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 12 - vi) Copies of annexures attached with the petition are not attested to be true copy by the counsel. vii) Vernacular of the annexures and their translation is not filed. viii) Application for bringing legal representatives on record is without required particulars. ix) Paragraphs and page numbers of appeal or revision are not consecutively and correct. x) A note regarding such and similar case is not given, if any. xi) Appeal/application does not specify the act under which the appeal or application lies. xii) Civil appeal/Revision/Misc. application is not page marked and indexed in the following seriatim and some documents out of the documents mentioned below are not filed; (i) Miscellaneous application along with affidavit; (ii) Grounds of Appeal/revision on prescribed opening sheet; (iii) Memo of parties; (iv) Trial Court’s judgment and decree where necessary; (v) Copy of Lower Appellate Court judgment; (vi) Decree of lower appellate court and grounds of appeal before lower appellate court and (vii) Additional document, if any. xiii) Criminal Appeal/revision is not page marked and indexed in the following seriatim and some documents out of the documents mentioned below are not filed; (i) Miscellaneous applications, if any; (ii) Grounds of appeal/revision filed in the High Court; (iii) Copy of lower appellate Court judgment; (iv) Copy of grounds of appeal/revision before the lower Appellate Court; (v) Copy of trial court judgment and (vi) Document, if any. xiv) Copy of order of District Magistrate is not filed with revision u/s 378 Cr.P.C. and Certificate regarding supply of advance copy is not filed with appeal under Section 378(4) Cr.P.C. CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 13 - xv) Affidavit is not filed by the accused with Revision under Sections 397 and 401 Cr.P.C. xvi) Copies of bail application is not supplied in advance to the A.G. xvii) Affidavit or attested copy of transfer application under Section 407 Cr.P.C. is not filed. xviii) Attested copies of documents relied upon by the petitioner is not filed with transfer application. xix) Copy of transfer petition is not supplied to A.G. by the petitioner in advance. xx) Index is not in proper form and properly prepared. xxi) Impugned orders along with their corresponding annexure are not numbered and mentioned in the head note and prayer clause. xxii) State case is not represented by the competent authority. xxiii) Any power of attorney and document executed before the foreign authority is not duly embossed. xxiv) Resolution/authority letter is not filed with the company petition/other similar petition. xxv) Photocopy/typed copy of annexures/impugned order are not legible. xxvi) Opening sheet is not filed and properly filled. xxvii) Court fee is insufficient and case is time barred. xxviii)For other objections, if any.

Objections in Civil Writ Petition Exclusively i) A concise list of dates and events depicting acts/events with corresponding dates is not filed. ii) Page number and para number in which question of law involved in the Civil Writ Petition is mentioned are not given. iii) The following informations are not given below the index: - a) b) Particular of the similar case, if any. Caveat has been filed or not? CM No.8256-C of 2010 in/and RSA No.2718 of 2010 ***** - 14 - c) Name of the relevant acts/statutes involved in the case. d) Specific mention whether the instant Civil Writ Petition is a PIL or not, and e) Whether check list is filed. I would also like to give a piece of advice to the Registry of this Court to prepare a check-list of the objections which are likely to be raised generally by the Registry and make it known to the members of the bar so that they could comply with objections in time.