MANGAL RAM Vs. SAMAR JAHAN

JUDGEMENT

(1.) CLMA No. 9135/10 (Delay Condonation Application) & Objection in delay condonation application Delay condonation application (CLMA No. 9135/10) has been filed by the applicant seeking condonation of 2088 days' delay in filing the Second Appeal. Earlier on 26.05.2011, this application was allowed on the basis of statement given by the learned counsel for the respondent that respondent has no objection, incase the delay condonation application is allowed, provided the applicant/appellant undertakes to vacate the premises in question within the stipulated period prescribed by this Court. At that time, learned counsel for the appellant agreed for the same and prayed that appellant may be permitted to retain the accommodation in question for a further period of six months. On the basis of statement given by learned counsel for the parties, the delay condonation application was allowed without being heard on merit. Thereafter, the learned counsel appearing on behalf of the applicant/appellant sought permission to withdraw the Second Appeal with the prayer that appellant may be permitted to retain the accommodation in question for a further period of six months. At that time, learned counsel for the respondent also pointed out that earlier also, on the request of the appellant/applicant, three months time was given by the Court below to the applicant/appellant for the same purpose but subsequently he filed appeal. However, on the basis of the statement made by the counsel for the appellant/applicant for vacating the accommodation in question within a period of six months, such permission was granted and the Second Appeal was dismissed as withdrawn. Thereafter, after a long period i.e. on 18.07.2011, a recall application alongwith a delay condonation application was moved by the appellant/ applicant on the ground that he had never given any instructions to his earlier counsel to withdraw the Second Appeal, rather he was interested in getting the case decided on merit and earlier counsel appearing for the appellant/applicant, without there being any instructions from the appellant/applicant, withdrew the Second Appeal causing him irreparable loss and injury. In view of the statement made in the application and in the interest of justice, this Court recalled the order dated 26.05.2011. Thus, this delay condonation application revived and remained undecided till date.

(2.) HEARD learned counsel for the parties on the delay condonation application as well as on the objection filed against the delay condonation application.

(3.) I have considered the rival contentions advanced by the learned counsel for the parties and have gone through the law cited by them. This Court is of the view that the appellant/applicant has not availed the remedy available to him against the judgment and order passed in the appeal in the year 2004, rather he intentionally filed civil suit for injunction and he stood idle for a considerable period of 6 years. This Court is also of the view that the act of the appellant/ applicant is nothing but an abuse of process of law, as he himself filed an affidavit before the Execution Court for vacating the premises in question. Later on, he levelled allegation against the Advocate. In the High Court also, on his instructions, his counsel got the appeal dismissed by asking six months time for vacating the accommodation in question. But subsequently, he filed order recall application by stating that he had never instructed his counsel for the same, and thus he got the order recalled. The applicant cannot be granted benefit under Section 14 of Limitation Act because it is not a case where appellant/applicant has availed wrong remedy against the judgment and order dated 06.11.2004. In fact, the appellant/applicant did not avail any remedy against the said order but he kept quiet for about 6 years and then filed present second appeal. Suit No. 337/2004 was for different purpose. Propounding absolute honour to the ruling cited by the applicant in Balbir Singh vs. Commissioner Garhwal Mandal, Dehradun and others passed by this Court on 9th January, 2009 in Writ Petition no. 1325 of 2005 (M/S), Naresh Sharma and others vs. Ramesh chand and others, reported in AIR 2000 Himachal Pradesh-6 and Shyamal Kanti Danda vs. Chunilal Choudhary, reported in AIR 1984 Supreme Court-1732, I am of the view that the ratio of law cited by learned counsel for the appellant/applicant is not applicable in the present case, rather I am fortified with the view taken by Hon'ble Apex Court in Oriental Aroma Chemical Industries Ltd. (supra) in which Hon'ble the Apex Court has held that "The law of limitation is founded on public policy. The legislature does not prescribe limitation which the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury." In the light of the above, the applicant had not offered any plausible or tangible explanation for the long delay of 2088 days delay in filing the Second Appeal.