VARHYAN Vs. KALA

JUDGEMENT

(1.) This appeal is directed against the judgment delivered on 26.7.2011 in Misc. Civil Application No.291 of 2011 in First Appeal that was sought to be filed against the judgment, order and decree passed by the 7th Joint Civil Judge, Senior Division, Nagpur on 10.6.2009 in Special Civil Suit No.848 of 2003. After hearing the learned counsel for the appellants and the learned counsel for the respondents, this Court admitted the appeal on a substantial question of law.

(2.) Shri S.W. Sambre, learned counsel for the appellants has submitted that the first appellate Court, in rejecting the application filed for condoning the delay that had occurred in filing of the First Appeal proceeded absolutely on wrong footing that the original defendant No.1/Smt. Varhyan wd/o. Narendra Singh Chhatwal died on 10.9.2010 and that there was no evidence to show that from the date of receipt of the certified copies of the judgment and decree on 15.2.2010 till 10.6.2010, Smt. Varhyan wd/o. Narendra Singh Chhatwal was not keeping good health, which made the learned District Judge find that there was a negligence on the part of the applicants. The learned counsel for the appellants has submitted that the copy of the death certificate of Smt. Varhyan was already produced before the first appellate Court and it clearly showed that she had died on 30th January, 2005. He also submitted that in fact, Smt. Varhyan had died during the pendency of the Civil Suit and since her legal representatives were already there on record, her name was deleted from the array of the defendants. He further submitted that even when Misc. Civil Application No.291 of 2011 was filed, the cause title clearly indicated this fact and that the names of the applicants, in all five, began with the name of Surjeet Singh Narendra Singh Chhatwal. However, according to him, these facts present on record were completely missed by the learned District Judge and the result was a perverse order against the present appellants. He further submits that in a case involving questions relating to title and right to possession of an immovable property, Courts should not take any technical or pedantic approach and decide such disputes not on technicalities, but on merits of the matter and that this is a fit case wherein opportunity needs to be given to the appellants to present their case on merit.

(3.) Shri N.A. Padhye, learned counsel for the respondents submits that there may be a mistake in making reference to Smt. Varhyan wd/o. Narendra Singh Chhatwal and particularly about her death on 10.9.2010 on the part of the first appellate Court. But, he submits that this mistake was the result of a mistake committed by the applicants in their application for condonation of delay. He points out from paragraph No.4 of the application that the applicants had clearly mentioned that the delay was mainly on account of illness of the applicant No.1, which resulted in death of applicant No.1 on 10.9.2010. He further submits that the impugned judgment would show that the first appellate Court had not proceeded merely on the basis that Smt. Varhyan wd/o. Narendra Singh Chhatwal did not take steps for filing of the appeal from 15.2.2010 till her death on 10.9.2010, although it was on a misconception of fact, but had also found absolute negligence on the part of the rest of the applicants in taking diligent and prompt steps in filing of the First Appeal. All these facts are clearly borne out from the reasons given by the first appellate Court in its impugned Judgment. He further argued that the law does not and should not support a person who is indolent. The law relating to condonation of delay is meant for lending its supporting hand to diligent litigants and who, for some reasons beyond their control, are not able to knock at the doors of the law within stipulated period of time, so submits learned counsel for respondents. Therefore, according to him, this is not a case meriting any indulgence to the appellants.