Single judge dismissed an application for condonation of delay for filing an appeal, noting fraudulent averments regarding document loss and rejection of the appeal as time-barred.
Application for condonation of delay dismissed; appeal dismissed.
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CM No.8337-C of 2006 RSA No.3382 of 2006 (O&M)
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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CM No.8337-C of 2006 RSA No.3382 of 2006 (O&M)
Date of Decision : 8.12.2008.
Roshni and another
..Applicants/ ..Appellants.
Vs.
Bhoop Singh and another
..Respondents.
CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.Virender Singh, Advocate for Mr.Rakesh Nehra, Advocate for the applicants-appellants.
Mr.Deepender Ahlawat, Advocate for the respondents.
RAKESH KUMAR JAIN, J.
The applicants-appellants have filed this application under Section 5 of the Limitation Act along with an affidavit seeking condonation of delay of 112 days in filing the appeal. In para 3 of the application, it is mentioned that applicant-appellant Roshni handed over relevant papers to her counsel for filing the appeal in the High Court. The appeal was got typed within limitation but inadvertently, the brief of the case file got misplaced in the High Court by Munshi/Clerk of the counsel for the appellants due to which the appeal could not be filed within limitation.
Notice in the application was issued. Respondents have filed the reply and the contents of para 3 of the application are denied.
After hearing the learned counsel for the parties and perusal of the record, it is found that the appeal was decided by the first Appellate
CM No.8337-C of 2006 -2 - RSA No.3382 of 2006 (O&M)
Court on 30.1.2006 and the application for obtaining certified copy was filed by the appellants on 8.2.2006, which was prepared and was also delivered on the same day i.e. 8.2.2006. The grounds of appeal were drafted by the learned counsel for the appellants on 22.8.2006 and the appeal was filed in the High Court on 30.8.2006 vide receipt No.96693 at 12.35 p.m. No date has been mentioned by the counsel for the appellants either in the power of attorney or in the index about his having been engaged in this case.
In view of the aforesaid facts, it is apparent that the limitation period to file the appeal had already expired on 4.5.2006, therefore, the averments made in para 3 of the application and the affidavit are patently false because in this paragraph it has been mentioned that appeal was got typed within limitation but brief of this case was misplaced by the Clerk of the counsel for the appellants and therefore, the appeal could not be filed within limitation.
In view of the aforesaid reasons that the appeal is filed after a considerable delay of 112 days without any sufficient cause and a false affidavit has been filed by the appellants in support of the application, therefore, the application is hereby dismissed and consequently, the appeal is also dismissed.
(Rakesh Kumar Jain) Judge
8.12.2008 Meenu
1 issue framed by the court
Whether condonation of delay can be allowed where the foundation of the delay affidavit is false and the appeal was filed after the limitation period expired.
Roshni and another
Bhoop Singh and another
Rakesh Kumar Jain
As recorded by the court registry
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