Uttam Chand and Another Vs Piar Singh and Another

For the Appellant : Mr. Ajay Kumar, Senior Advocate with Mr. Rohit, Advocate. For the Respondents : Respondent No.1 is arleady ex parte vide order dated 24.09.2020. : Naveen K. Bhardwaj, Advocate for respondents No.2(a)

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Rakesh Kainthla,Judge

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The present appeal is directed against the order dated 1.11.2019, passed by learned Additional District Judge (I) Kangra at Dharamshala (learned First Appellate Court), vide which the application for condonation of delay filed by the appellants (defendants before the learned Trial Court) was dismissed. ( Parties shall hereinafter be referred to in the same

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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manner as they were arrayed before the learned Trial Court for convenience ).

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Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit seeking a declaration with the consequential relief. The suit was decreed by the learned Trial Court vide judgment and decree dated 26.02.2005. The defendants filed a time-barred appeal. They also filed an application for condonation of delay in filing the appeal, stating that they came to know about the judgment and decree on 31.05.2006 when they went to Halqa Patwari to collect the revenue record and Patwari informed them that the judgment and decree would be implemented on 03.06.2006. They contacted their counsel’s clerk, who informed them that the suit was already disposed of on 26.02.2005. They applied for a copy of the judgment and decree, which was supplied to them on 01.06.2006. They could not contact their counsel, as the services of defendant-Uttam Chand were terminated and he had suffered a fracture on his left arm in February, 2005. Hence, it was prayed that the application be allowed and delay in filing the appeal be condoned.

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The application was opposed by filing a reply denying the contents of the application. It was asserted that the defendants had propounded a false story. They knew about the judgment and decree. The same counsel represented them before the learned Trial Court and the learned First Appellate Court. Defendant No.2 was still working as a Patwari and the termination of service of defendant No. 1 had no concern with the filing of the appeal. Even his services were terminated six years before the filing of the reply. He did not suffer any fracture in the year 2005; therefore, it was prayed that the application be dismissed.

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Learned First Appellate Court dismissed the application after holding that there was nothing on record to show that the services of defendant No.1 were terminated after the delivery of the judgment and decree by the learned Trial Court. The defendants were working as government officials and cannot be equated to illiterate persons. They failed to show any justification for not filing the appeal within the stipulated period. No medical record was filed to show the fracture. The same learned counsel represented them before the learned Trial

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Court and the learned First Appellate Court. Hence, there was no reason for the condonation of the delay.

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Being aggrieved from the order passed by the learned Appellate Court, the appellants/defendants had filed the present appeal. They proposed following substantial questions of law:-

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Whether the findings of the learned First Appellate Court and the learned Trial Court are a result of complete misreading of pleadings, evidence particularly and the law as applicable to the facts of the case and as such palpably erroneous, perverse and illegal and if so what effect?

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Whether the First Appellate Court failed to formulate proper points for determination and whether failure of it has affected its judgement and resulted into miscarriage of justice to appellants?

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Whether the findings of the learned First Appellate Court on the application under Section 5 of the Limitation Act, 1963, are contrary to facts, illegal and erroneous and as such liable to be set aside?

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I have heard Mr Ajay Kumar, learned Senior Advocate

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assisted by Mr Rohit, Advocate for the appellants/defendants and Mr Naveen K. Bhardwaj, Advocate, for respondent No.2(a)/legal representative of the original plaintiff.

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Mr. Ajay Kumar Senior Advocate submitted that the learned First Appellate court erred in dismissing the application. It was not disputed in the reply that the services of defendant No. 1 were terminated and learned First Appellate Court erred in holding that there was no evidence in support of this fact. The law regarding condonation of delay is quite liberal and the learned Trial Court failed to notice this aspect. Hence, he prayed that the present appeal be admitted on the proposed substantial questions of law.

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Mr Naveen K. Bhardaj, learned counsel for respondent No. 2(a) supported the findings recorded by the learned First Appellate Court and submitted that the appellants/defendants had not mentioned the date of the termination of the service of appellant No.1. They had not filed any medical record to establish their plea that

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Uttam Chand had suffered a fracture. Hence, the learned First Appellate Court had rightly dismissed the application.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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The appellants/defendants had assigned two reasons in the application for condonation of delay filed by them: first that the services of appellant/defendant No.1 were terminated and he had

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suffered a fracture on his left arm in February 2005. The learned Trial Court had passed the judgment and decree on 26.02.2005. The application does not mention the date of the termination of service. It does not even mention whether the services of defendant No.1 were terminated after the passing of the judgment and decree or before it. The application is happily vague regarding this fact.

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11 The plaintiffs/respondents have specifically asserted that the services of defendant no.1 were terminated six years before filing of the reply. The reply was filed in the year 2006. This means that the services of defendant No.1 were terminated somewhere in the year 2000, which could not furnish sufficient cause for not filing the appeal in the year 2005.

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12 No medical record was filed to show the fracture suffered by appellant/defendant No.1 and the learned First Appellate Court had rightly observed that the plea was not acceptable in the absence of the medical record.

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Hence, it cannot be said that there was a misreading of the pleadings or that the findings were wrongly recorded. The failure to formulate the point for determination did not affect the parties as

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they knew about the dispute and were not prejudiced by the failure to formulate the point for determination.

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