BHUPINDER SINGH MINOR Vs. DILBAGH SINGH

JUDGEMENT

(1.) A suit for specific performance was filed by the respondent on 24-12-1982 and it was decreed on 26-7-1988. The petitioners preferred an appeal against the said judgment and decree. Admittedly, the appeal was barred by limitation of 20 days. The petitioners sought condonation of delay under Section 5 of the Limitation Act, inter alia, contending that Gian Kaur petitioner is a widow and the other petitioners are minors She was ill from 52-8-1988 to 13-9-1988. It is only after her recovery that she contacted her lawyer and collected from him a certified copy of the judgment along with the brief and filed the appeal on 19 9-1988.

(2.) THE lower appellate Court found that it is not proved that Gian Kaur who is resident of village Dalike went to village Qadian or she underwent treatment for her illness there The deposition of the doctor with respect to the nature of the disease at the same time did not render her handicap in her day to day affairs Consequently, it was held that there were no sufficient grounds to condone the delay. It was also observed that there is no evidence that the petitioner remained bed ridden. Further it was found that since each day's delay has not been explained and the appellant's having recovered from her illness on 13. 9. 1988; her contacting the lawyer on 15-9-1988 and obtaining copy of the judgment and the brief on 18-9-1988. still the appeal was not filed till 12- 9-1988. Resultintly, the Court held that there are no sufficient grounds to condone the delay. Learned counsel for the petitioners contends that the lower appellate Court has erred in observing that each day's delay has to be explained meticulously in view of the law laid down in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katsji and Ors. , A. I. R. 1987 S. C. 1353 and Mostt Sundri and Anr. v. Sakal Sahnt and Ors. , A. I. R. 1973 Pat. 150. According to him, the lower appellate Court, has failed to take into consideration the factor of petitioner's being a widow having minor children. Even if there was some negligence on her part, costs should have been the panacea. It was not such an inordinate delay which can give rise to any inference of mala fide on the part of the petitioners for preferring the appeal. It is further stated that since wrong law has been applied with respect to explaining each day's delay and wrong facts with respect to the residence of the petitioner have been assumed, the lower appellate Court has failed to exercise jurisdiction vested in it.

(3.) LEARNED counsel for the respondent has controverted the submissions made by the counsel for the petitioners. It is argued that finding with respect to the sufficient cause having rot been made out, is a finding of fact arrived at by the Court below in exercise of jurisdiction and can not be interfered with Learned counsel for the respon- dent relies on Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and Ors. , A. I. R. 1964 S. C. 1336 and The Managing Director (MIG) Hindustan Aeronautics Ltd. , Belanagar, Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeroncutics Ltd. Balanagar Hyderabad, A. I. R. 1973 S. C. 76 it was further contended that one heir was sufficient to prefer the appeal as he alone could have represented the State In this regard reliance was placed on Mahabir Prasad v. Jage Ram and Ors. , A. I. R. 1971 S. C. 742.