STATE OF PUNJAB Vs. EX. CONSTABLE SWARAN SINGH

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenges order dated 6.10.2000 passed by the District Judge, Hoshiarpur dismissing an application of the defendant -petitioner in which prayer for condonation of delay in filing the appeal under Section 5 of the Limitation Act, 1963 (for brevity, 'the Act') was made. As a consequence to the dismissal of the application, the appeal itself has been dismissed as time barred.

(2.) IN order to put the controversy in its proper perspective, it would be apposite tc make a reference to few facts. Plaintiff -respondent filed Civil Suit No. 285 of 1996 on 24.10.1996 seeking a declaration to the effect that order dated 6.12.1995 passed by the defendant -petitioner dismissing him from service is ultra vires, unconstitutional and against the principles of natural justice. A further relief of mandatory injunction was also prayed that the defendant -petitioner be directed to pay him arrears of his pay due to him and permit him to join his duties as constable. The suit of the plaintiff -respondent was decreed in his favour ex pare with consequential relief of mandatory injunction declaring the order dated 6.12.1995 as illegal, null, void and against the principles of natural justice. A further declaration was given in favour of the plaintiff -respondent that he continued in service as constable in the department and the defendant -petitioner was directed to. allow him to join the duties. Aggrieved against the impugned order, an appeal was filed by the defendant -petitioner before the District Judge, Hoshiarpur. Along with the appeal, an application under Section 5 of the Act seeking condonation of 127 days delay in filing the appeal was also moved. The application was contested by the plaintiff -respondent and an issue was framed to the effect as to whether there were sufficient grounds to condone the delay in filing of the appeal. The principal reasons pleaded in the application explaining the delay in filing of the appeal are that the Commandant, 9th Battalion, Punjab Armed Police, Amritsar (for brevity, 'the Commandant') who had passed the order dated 6.12.1995 dismissing the plaintiff -respondent Swaran Singh from service was not made party to the suit. The state of Punjab through the Secretary, Department, of Home, Government of Punjab was alone made a party. No summons were ever served through the Home Secretary on the Commandant. It has further been claimed that the Commandant came to know about the judgment and decree dated 25.11.1998 passed in favour of the plaintiff -respondent on 18.1.1999 when the plaintiff -respondent approached him to join his duties. Therefore, prayer was made for condonation of delay in filing of the appeal from 18.1.1999 to the date of the appeal because after the date of knowledge on 18.1.1999, the Commandant addressed a communication dated 22.1.1999 to the Additional Director General of Police, P.A.P., Jalandhar Cantt. seeking his legal opinion for taking further action in the matter. Mr. Joginder Pal, Assistant District Attorney, P.A.P. expressed the opinion that the judgment and decree dated 25.11.1998 could be challenged at that stage. Thereafter, the Commandant addressed communication dated 2.2.1999 to the Director General of Police, Punjab and requested him to approach the Legal Remembrancer -cum -Director, Prosecution and Litigation, Punjab, Chandigarh to issue necessary instructions to the District Attorney, Hoshiarpur to file an appeal against the aforementioned judgment and decree. Accordingly, the Director General of Police, Punjab requested the Director, Prosecution and Litigation, Punjab to send his opinion. The Government of Punjab accorded sanction to the Director, Prosecution and Litigation for defending the case on public expense and also to issue necessary instructions to the District Attorney, Hoshiarpur. One Mr. Sarwan Singh, Deputy Superintendent of Police. Head Constable Harinder Singh and Assistant Court Clerk of 9th Battalion, P.A.P., Amritsar were deputed to pursue the case in the office of Director General of Police, Punjab, Director, Prosecution and Litigation, Punjab and the Secretary to Government of Punjab, Department of Home. They attended their office on 24.2.1999, 25.2.1999, 11.3.1999 and 12.3.1999. On 21.3.1999, the Department of Home Affairs and Justice sent advice of the Director General of Police with instructions to file the appeal on behalf of the defendant -petitioner. A certified copy of the judgment and decree dated 25.11.1998 was applied by the District Attorney on 30.3.2000. Thereafter, the certified copy of the judgment and decree dated 25.11.1998 was sent along with his comments by the Assistant District Attorney to the District Attorney, Hoshiarpur on 9.4.1999 who considered the case and sent his opinion to the Director, Prosecution and Litigation, Punjab, The latter issued the instructions to the District Attorney, Hoshiarpur for filing the appeal on 4.5.1999 and then the District Attorney conveyed the Commandant on 7.5.1999 and the communication was received in the office of the Commandant on 22.5.1999 on which direction was issued to file the appeal and eventually the appeal was filed on 26.5.1999. On the basis of aforesaid averments made in the application, the delay of 127 days in filing the appeal has been sought to be condoned. The application filed by the defendant -petitioner was opposed by raising various objections. The plaintiff -respondent averred that there is long and unexplained delay in filing the appeal and only an application under Order IX Rule 13 of the Code for setting aside the ex parte judgment and decree was maintainable. The District Judge after framing an issue and recording of evidence dismissed the application by recording the following order: -

(3.) MR . Lakhinder Singh, Additional Advocate General, Punjab has argued that once the concerned department who has passed the order has not been impleaded as party, no knowledge of passing of judgment and decree could be imputed to that department. According to the learned counsel, even such a judgment and decree would not be binding on the department because it was not made party by the plaintiff -respondent. Learned counsel has further argued that delay of 127 days after the date of knowledge is also liable to be condoned because a close perusal of the averments made in the -application under Section 5 of the Act reveal that tremendous efforts have been made by the Commandant to get an appeal filed. Those efforts made by the Commandant would show that the defendant -petitioner could not considered to be negligent and lazy. On the contrary, they have to be considered as vigilant. Therefore, according to the learned counsel, the delay in filing the appeal deserves to be condoned.