Dismissed

Prakash Chand v. Kamlesh Singh

Himachal Pradesh HC8 Apr 2015CMP.M/983/2014

Case brief

AI extract

What is this about?

In a second appeal regarding property rights, the High Court of Himachal Pradesh dismissed the appellant's Section 5 application for condoning a 292-day delay. The court found the explanation contradictory and insufficient. It also held the appellant ineligible for proprietary rights as a non-occupancy tenant.

What did the court decide?

Condoning of the delay of 292 days dismissed; consequently, the second appeal and pending applications also dismissed.

Prakash Chand Vs Kamlesh Singh — Property and Title | Himachal Pradesh HC (2015)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMP(M) No. 983 of 2014 in RSA No.______of 2015

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Decided on: 8^th April, 2015

Prakash Chand

.......Appellant.

Versus

Kamlesh Singh and others

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...Respondents.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ For the appellant: Mr. Vijay Bir Singh, Advocate. For the respondents: Mr. Ashwani K. Sharma, Advocate

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Dharam Chand Chaudhary, Judge (Oral)

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Defendant is in second appeal. He is aggrieved by the judgment and decree passed by learned Additional District Judge (II), Kangra at Dharamshala in Civil Appeal No. 293-I/10/09 on 13.06.2013 whereby the appeal has been dismissed and the judgment and decree passed by learned Civil Judge (Junior Division), Indora, District Kangra in Civil Suit No. 156/2005 affirmed.

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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The appeal is time barred and is

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accompanied by the present application under Section 5 of the Limitation Act. There is delay of 292 days occurred in filing the main appeal. The explanation as forthcoming reads as follow:

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“3. That the respondents are the influential persons taking the advantage of illiteracy and old age of applicant who is about 80 years of age and they did not tell him about the decisions passed by the lower courts. He was being told that appeal has been decided in his favour. It is only in the third week of June, 2014 when the respondents/plaintiffs was mutated the land in his own favour and the applicant was under the belief that his appeal has been decided in his favour, the applicant got the papers and got it examined with the assistance of some of his old friends from an advocate only when he came to know that appeal has also been decided against him in June, 2013. It is thereafter that the applicant applied for the record and the same was got examined by the counsel at Shimla hence the appeal was filed immediately thereafter without any further delay.”

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The non-applicants/respondents when put to notice have contested the application. Their stand, in a nut-shell, is that they were not duty bound to inform the applicant/appellant about the decision of the first appeal, he preferred in the lower appellate Court. The plea to condone the delay, according to them, is ridiculous as it was for him to have obtained the information qua the outcome of the appeal from learned counsel representing him.

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In rejoinder, the applicant/appellant has come-forward with altogether a different stand that it is the counsel representing him did not inform the dismissal of the appeal, he filed in the lower appellate Court.

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On hearing learned counsel on both sides and going through the record, I find the present a case where sufficient cause has not been shown for condonation of an inordinate delay of 292 days. The explanation as set-forth in the application and also rejoinder to the reply filed on behalf of the applicant/appellant is contradictory in nature. The nonapplicants/respondents were no-where duty bound to

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apprise the applicant/appellant about the fate of the appeal, he preferred in the lower appellate Court. If adverting to the plea raised in rejoinder, the applicant/appellant came with altogether different stand that it is learned counsel representing him in the learned lower appellate Court, failed to inform him about the dismissal of the appeal. The plea so raised without any proof cannot be believed to be true. In order to succeed on this ground, the applicant/appellant should have filed affidavit of learned counsel representing him in the lower appellate Court in this regard. No such proof, however, could be produced, irrespective of more than sufficient opportunities granted for the purpose. On the other hand, expiry of the period prescribed for filing an appeal against the judgment and decree under challenge has resulted in a valuable right in favour of the nonapplicants/respondents. Such right cannot be taken away without the applicant having shown sufficient cause, warranting the condonation of delay. It is well settled that the law of limitation may be harsh to a party,

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however, has to be applied with all rigor and the delay should only be condoned in a case where sufficient cause is found to have been shown.

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On merits also, having gone through the record the appellant-defendant who has only been found to be recorded as non-occupancy tenant for the first time in the Jamabandi for the year 1978-79 could have not been conferred upon with proprietary rights, because as per requirement of the law, a person must be in possession of the land as non-occupancy tenant on the appointed day viz., 03.10.1975, the day when the H.P. Tenancy and Land Reforms Act was made applicable. The appellant-defendant was not in possession of the suit land on that day. Therefore, learned trial Court seems to have not committed any illegality or irregularity while decreeing the suit. Similarly, the judgment and decree passed by learned lower appellate Court also seems to be neither illegal nor unsustainable.

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In view of what has been said hereinabove, the applicant/appellant has failed to explain the delay

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of 292 days as occurred in filing the appeal. The application being devoid of any merits is, therefore, dismissed. Consequently, the appeal and the pending application(s), if any, shall also stand dismissed.

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April 8, 2015 (Dharam Chand Chaudhary) (naveen) Judge

Prakash Chand v. Kamlesh Singh

Case brief

What is this about?

What did the court decide?

Prakash Chand v. Kamlesh Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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