Allowed

Jai Pal Singh v. Ramesh Kumar

Punjab & Haryana HC3 Jan 2012CR/1035/2011

Case brief

AI extract

What is this about?

In a civil revision, this court allowed the petition, setting aside the lower appellate court's order which dismissed an application for condonation of a 9-day delay in filing a first appeal. The court held the dismissal was perverse and restored the appeal for decision on merits.

What did the court decide?

Impugned order set aside; application for condonation of delay allowed subject to costs; first appeal restored and directed to be decided on merits.

Jai Pal Singh Vs Ramesh Kumar — Specific Performance | Punjab & Haryana HC (2012)

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Civil Revision No. 1035 of 2011

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Civil Revision No. 1035 of 2011 Date of decision : January 03, 2012

Jai Pal Singh

....Petitioner

versus

Smt. Ramesh Kumari

....Respondent

Coram: Hon'ble Mr. Justice L.N. Mittal

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Present : Mr. Ashwani Talwar, Advocate, for the petitioner

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Mr. Vivek Suri, Advocate, for the respondent

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L.N. Mittal, J. (Oral)

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Defendant Jai Pal Singh has filed this revision petition under section 115 of the Code of Civil Procedure assailing order dated 7.2.2011 passed by learned Additional District Judge, Panchkula thereby dismissing petitioner's application for condonation of delay in filing the first appeal and consequently dismissing the appeal also.

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I have heard learned counsel for the parties and perused the

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case file.

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Respondent-plaintiff Ramesh Kumari filed suit against defendant-petitioner Jai Pal Singh for specific performance of the agreement to sell. Defendant was proceeded ex parte in the suit as he did not appear in

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Civil Revision No. 1035 of 2011

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spite of service. However, on his application moved subsequently, he was allowed to join the proceedings. However, in spite of many adjournments he failed to file written statement and ultimately none appeared for him in the trial court and he was again proceeded ex parte. Later on, he filed application for setting aside the ex parte proceedings which was dismissed by the trial court vide order dated 12.8.2009. Thereafter suit was decreed ex parte by the trial court vide judgment and decree dated 9.4.2010, Annexures P/3 and P/4. Feeling aggrieved, defendant filed first appeal against judgment and decree of the trial court and along with appeal, moved application for condonation of delay in filing the said first appeal. Learned lower appellate court vide impugned order dated 7.2.2011 dismissed the said application for condonation of delay in filing the first appeal and also consequently dismissed the first appeal, necessitating the filing of the instant revision petition.

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Judgment and decree of the trial court are dated 9.4.2010 and first appeal was filed on 18.5.2010. Even if period spent in obtaining certified copies of judgment and decree of the trial court is not excluded, filing of first appeal was delayed by nine days only. Obviously, the said small delay should have been condoned, may be on payment of costs. Condonation of such small delay should not have been declined by the lower appellate court. Courts are liberal in condoning such delay unless the same is malafide. Lower appellate court while declining the application for condoning the aforesaid delay in filing first appeal was swayed by the history of the suit mentioned hereinbefore because the defendant was

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Civil Revision No. 1035 of 2011

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proceeded ex parte twice and he did not file any written statement. Subsequently his application for setting aside ex parte proceedings was also dismissed by the trial court and the said order was also not challenged by the defendant by filing revision petition. However, these circumstances could disentitle the petitioner to seek setting aside of the ex parte judgment and decree. However, defendant had two options i.e. to move application in trial court for setting aside of ex parte judgment and decree for which sufficient ground had to be shown which apparently did not exist in the instant case in view of the aforesaid history of the suit and the defendant also had the second option to challenge the ex parte judgment and decree on merits by filing appeal. The defendant for obvious reasons opted for second option by filing first appeal against ex parte judgment and decree of the trial court. It is well settled that even ex parte claim has to be proved by the plaintiff. The defendant had right to prefer first appeal to challenge even ex parte judgment and decree in the appellate court. First appeal by the defendant should not have been dismissed by refusing to condone the short delay of nine days only in filing the first appeal.

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In view of the aforesaid, I am of the considered opinion that impugned order passed by the lower appellate court is perverse and illegal and suffers from error of jurisdiction. Lower appellate court failed to exercise jurisdiction which vested in it for condoning the short delay of nine days. Accordingly, the instant revision petition is allowed. Impugned order dated 7.2.2011 passed by learned Additional District Judge, Panchkula is set aside and application Annexure P/1 moved by petitioner

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Civil Revision No. 1035 of 2011

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herein in the lower appellate court for condoning the delay in filing the first appeal is allowed subject to payment of Rs 1000/- as costs precedent. The cost amount shall be paid to plaintiff-respondent in the lower appellate court. First appeal is restored to the files of the lower appellate court and shall be decided on merits in accordance with law.

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Parties are directed to appear in the lower appellate court on 8.2.2012. The lower appellate court shall decide the appeal as expeditiously as possible.

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( L.N. Mittal ) January 03, 2012 Judge 'dalbir'

Jai Pal Singh v. Ramesh Kumar

Case brief

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Jai Pal Singh v. Ramesh Kumar

Case brief

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