Poonam & Ors vs Harish Kumar & Anr

dated 01.12.2008 of the High Court of Punjab

and Haryana at Chandigarh in Civil Revision

No.3745/2008, whereby the High Court declined

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to interfere with the order dated 27.07.2007 of

the District Judge, Ambala. By order dated

27.07.2007 the District Judge dismissed the

application for condonation of delay of 63 days

in filing the appeal against the judgment of

the trial court in Civil Suit No. 23/2003.

3. The facts and circumstances, which are relevant

to this appeal, are as under.

4. All the appellants no. 1 to 3 are sisters of

Respondent no. 1, who is their brother. The

father of the parties died on 17.01.2003 and

the mother had predeceased the father. Eight

daughters and one son survived their father.

The father during his lifetime arranged the

marriage of six daughters except the appellant

no. 1 & 2 herein.

5. In the year 2003, the appellants brought a suit

(CS no. 23 of 2003) before the Civil Judge,

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Ambala City for declaration of their title as

3/9th owner each, of the suit scheduled

properties and for permanent injunction

restraining the Respondent no.1 from

interfering with their peaceful possession and

creating any third party rights in the said

properties. According to the appellants-

plaintiffs, the suit schedule properties were

their ancestral property in which plaintiffs

have got right by birth and all of them have

got equal shares in the same.

6. The Respondent no. 1 controverted the aforesaid

averment of the appellants-plaintiffs by

claiming that the suit schedule properties were

not ancestral but were self-acquired by their

deceased father. Further case of the Respondent

No.1 is that he is the absolute owner of the

said properties by virtue of a registered Will

dated 18.06.2002 executed by the deceased

father in his favour.

3 7. On the pleadings of the parties, the Trial

Court framed five issues. Thereafter the case

was adjourned for evidence of the appellants-

plaintiffs. Despite several opportunities, the

appellants-plaintiffs allegedly led no

evidence. Since there was no evidence of the

plaintiffs on record, the Respondent no.1-

defendant also did not lead any evidence.

8. By order dated 01.12.2006 the Trial Court

dismissed the suit filed by the appellants-

plaintiffs with costs and accordingly a decree

was drawn up.

9. The appellants-plaintiffs challenged the

aforesaid judgment and decree by filing an

appeal before the District Judge, being Civil

Appeal No.12 of 2007. The appellants-plaintiffs

also filed an application for condonation of

delay of 63 days in filing the appeal by

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offering an explanation which can be summarized

as under:

"That the appellant no. 2 and 3 were

married and illiterate. The appellant

no.1 was pursuing the case in the court.

During the pendency of the case, appellant

no.1 fell ill and therefore requested the

counsel to intimate to the appellants

regarding the position of proceedings. The

counsel assured that he will inform the

appellants as and when their presence is

needed in the court. But the counsel never

informed the appellants for giving their

evidence in court, which resulted in the

dismissal of the case on 1.12.2006. On

26.02.2007, someone from the locality

informed the appellants about the

dismissal of the case. Thereafter the

appellants rushed to the Court and applied

for a certified copy of the judgment and

then filed the appeal a little belatedly."

10. By order dated 27.07.2007, as noted above, the

District Judge dismissed the application for

condonation of delay on the ground that the

delay was not bona-fide and no reasonable cause

has been made out to condone the delay.

5 11. The reasoning of the District Judge for

reaching the above conclusion was that, (i) the

appellants are neither illiterate nor rustic

villagers as all of them had signed in English.

(ii) During the course of proceedings before

the trial court, the appellants were careless

and negligent.

12. Against this order the appellants preferred a

revision before the High Court.

13. By impugned order dated 01.12.2008 the High

Court dismissed the revision petition upholding

the order of the District Judge. The High Court

expressed the view that the delay of 63 days in

filing the appeal has not been properly

explained.

14. We cannot accept the view taken by the High

Court in the impugned judgment. When a Court

exercises its discretion in either condoning or

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refusing to condone delay in filing any

proceeding, the Court acts in exercise of its

discretion. Normally, this Court in exercise

of its discretion under Article 136 of the

Constitution may not interfere with the

exercise of discretion by the High Court in

such matters. However, there is no strait-

jacket about this. The discretion of this

Court under Article 136 of the Constitution is

meant to further the ends of justice and this

Court has been using its discretion in

appropriate cases when it is satisfied that

exercise of jurisdiction by the High Court or

other Tribunals has not been on sound judicial

principles. It is well settled that judicial

discretion shall always be exercised "according

to the rules of reason and justice and not

according to private opinion" [See Sharpe Vs.

Wakefield (1891 AC 193)].

7 15. In the facts of this case it is clear that of

all the three ladies, who were the appellants,

one of them was pursuing the case and she fell

sick. Therefore, she was not in a position to

pursue the legal remedy with due diligence as a

result of which the appeal was filed with a

delay of 63 days. The delay of 63 days is not

a delay for a long period and there has been

some explanation for the delay. The High Court

should have, before passing the impugned

judgment, considered the explanation for the

delay along with the facts of the case, the

position of the parties, the nature of the

litigation and the period of delay. The High

Court should also have considered that it has

been settled by a catena of cases that, unless

the delay is gross, an explanation for the same

should be liberally construed. It appears that

the High Court has not been able to consider

all these relevant facts in their correct

perspective before passing the impugned order.

8 16. We, therefore, are constrained to set aside the

order of the High Court and condone the delay.

We direct that the appeal should be restored to

its file and the hearing of the appeal may

proceed as expeditiously as possible.

17. However, nothing said in this judgment should

be considered as expression of opinion on the

merits of the controversy between the parties.

The appeal is allowed. There will be no order

as to costs.

.......................J.

(ASOK KUMAR GANGULY)

.......................J.

New Delhi (GYAN SUDHA MISRA)

November 03, 2011

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