Dismissed

Sh. Gulab Singh v. Smt. manorma and Ors.

Himachal Pradesh HC27 Sept 2023CMP.M/155/2020

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed the application seeking condonation of delay in filing an appeal under Section 96 CPC. The Court held that the appellants failed to provide tangible material to support their claim that their counsel failed to inform them of the decree's passing.

What did the court decide?

The appeal against the impugned judgment and decree was barred by limitation and the application was dismissed.

Sh. Gulab Singh Vs Smt. manorma and Ors. — Maintenance and Alimony | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMP(M) No. 155 of 2020

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Date of decision : 27.9.2023.

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Gulab Singh & another …Applicants

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Versus Manorma Devi & others. ...Respondents

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Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge .

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Whether approved for reporting?¹ For the applicants : Mr. S. M. Goel, Advocate. For the respondents : Mr. Sudhir Thakur, Sr. Advocate with Mr. Karun Negi, Advocate.

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Satyen Vaidya, Judge (oral):

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By way of this application, a prayer has been made to condone the delay in filing the appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 1.3.2018, passed by the learned Additional District Judge-I, Solan in Civil Suit No. 04-S/01 of 2014.

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The applicants are paternal grand parents of nonapplicants No. 2 and 3. Vide judgment and decree dated 1.3.2018, passed by learned Additional District Judge-I, Solan, applicant No.1 has been ordered to pay maintenance amount of

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

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Rs. 3000/- each to non-applicants No. 2 and 3 till they get married.

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The appeal preferred by the applicants is barred by limitation and has been filed approximately one year and six months after the expiry of period of limitation.

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It has been averred in the application that in the year 2017 and more particularly till 16.1.2018, the applicants had remained at Gaziabad, U.P. for most of the time in order to look after their daughter, who was in family way. In May, 2018, the applicants came to Solan for some time and again went back to Gaziabad. In July, 2018, applicant No.1 suffered heart attack and remained hospitalized at PGI, Chandigarh and Delhi. In such scenario neither the applicants could contact their counsel nor the counsel could maintain contact with them. As per applicants, they came to know of decree passed against them only on 23.11.2019 after summons in execution petition were received by them. On such ground, the delay is stated to be unintentional and bonafide.

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The application has been opposed by the nonapplicants. They have filed a detailed reply, wherein the averments made in the application have been denied in totality.

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While adjudicating the cause for delay in

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approaching the Court, what is to be seen primarily is the bonafide and truthfulness in the versions of the applicants. In the case in hand, the record of learned trial Court reveals that the period during which the applicants were alleged to be in Gaziabad, the proceedings were undertaken regularly by the learned Additional District Judge-I, Solan. The applicants were represented through their counsel on each and every date. On most of these dates a joint request was made by the counsel of both the parties on the ground that both the parties are in process for settling the matter amicably. In this manner, the matter was even referred to mediation, which eventually failed for non presence of the parties. Thereafter, the learned Additional District Judge-I, Solan heard both the counsel of the parties on merits and passed the decree, which is sought to be challenged by the applicants.

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Except a bald assertion in the application that the counsel could not intimate the applicants about the passing of the decree, no tangible material has been placed on record to support such contention. There is nothing on record from the side of the counsel representing the applicants before the learned trial Court which may verify the contents of the

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application. The applicants could have easily procured a proof in this regard from their learned counsel. In absence, adverse inference is to be drawn against the applicants. Even otherwise, the easiest way for a litigant is to put blame on the counsel. Such like plea cannot be accepted as gospel truth, keeping in view the fact that the counsel is under duty to inform his client. The counsel is under a statutory oath to perform his professional duty and would not normally deviate therefrom. In order to prove any omission on part of counsel, reasonable material should be produced on record.

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In absence of sufficient material, the plea raised by the applicants does not appear to be bonafide. It appears that only with a purpose to delay the fruits of the decree in favour of the non-applicants No. 2 and 3, who are minors, the applicants are indulging in such like tactics.

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In view of above discussion, I find no merit in the application. Consequently, no ground for condonation of delay is made out. The application is accordingly dismissed.

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(Satyen Vaidya)

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27th September, 2023 (kck)

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Judge

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Sh. Gulab Singh v. Smt. manorma and Ors.

Case brief

What is this about?

What did the court decide?

Sh. Gulab Singh v. Smt. manorma and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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Coram

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