ANARJIT SINGH MAAN Vs. NAND KISHORE

JUDGEMENT

(1.) THIS appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges concurrent findings of facts recorded by both the courts below wherein it has been held that the plaintiff-appellant and defendant-respondents 4 and 5 were not the owner nor they were in possession of the suit land measuring 6 kanals 17 marlas. The suit was held to be barred by time. It has further been held that a decree of possession by way of pre-emption dated 6.11.1969 was passed in favour of predecessors-in-interest of the plaintiff-appellant and defendant-respondents 4 and 5. However, Harbans Singh, their predecessor-in-interest, never applied to the Court for issuance of warrant of possession as no proceedings for the execution were initiated by the decree-holder at any stage. Therefore, on that basis it has been held that no civil suit could have been filed on 18.5.1983.

(2.) ALONG with the appeal, an application under Section 151 of the Code seeking condonation of 10 years and 27 days delay in re-filing the appeal has also been filed. The impugned judgment of the learned Additional District Judge, Jalandhar is dated 12.3.1992. A regular Second Appeal could be filed before this Court within a period of 90 days as envisaged by Section 100 of the Code. The instant appeal was filed on 4.7.1992 which was returned by the Registry by raising numerous objections. No steps were taken to remove the objections raised by the Registry of this Court. Unfortunately, the counsel through whom the appeal was filed expired on 5.9.1998 and the objections raised by the Registry could not be removed by the learned counsel during all these years of six years. Even thereafter, no steps were taken. The appeal along with an application was re-filed on 4.10.2002 in which prayer has been made for condonation of delay of 10 years and 97 days.

(3.) EVEN otherwise, the appeal is hopelessly time barred. Under Rule 5, Chapter 1, Part A of the Volume V of the Punjab and Haryana High Court Rules and Orders, a maximum period of 40 days in refiling the appeal has been prescribed after removal of objections. However, a liberal approach has been recommended by the Supreme Court in various judgments. Even in cases where an application under Section 151 of the Code has been filed seeking condonation of delay in refiling, the requirements of Section 5 of the Limitation Act, 1963 have to be fulfilled. Ordinarily, this Court would take a liberal view in condoning the delay but in cases where there is huge delay, then such a discretion cannot be exercised as it would become a mockery of the law of limitation. The appeal was filed on 4.7.1992 against the judgment and decree dated 12.3.1992. However, no steps were taken for six long years to remove the objections raised by the Registry of this court. The learned counsel who has filed the appeal has unfortunately expired on 5.9.1998. Even thereafter for about 3-1/2 years, no steps were taken. The appeal was re-filed on 4.10.2002 along with an application for condonation of delay. By stretching the liberal approach to maximum limits such a huge delay cannot be condoned. The view of the Supreme Court in the cases of Ram Nath Sao alias Ram Nath Sadhu and others v. Gobardhan Sao and others, 2002(2) RCR(Civil) 337 (SC) : 2002(3) SCC 195; Collector Land Acquisition v. Mst. Katiji, 1987(2) SCC 107; State of Haryana v. Chandra Mani and others, 1996(2) RCR(Civil) 82 (SC) : 1996(3) SCC 132; Nand Kishore v. State of Punjab, 1995(4) SCT 647 (SC) : 1995(6) SCC 614 and State of Bihar v. Kameshwar Prasad Singh, 2000(2) SCT 889(SC) : 2000(9) SCC 94 could not be followed because the delay in those cases was not such a huge so as to record a conclusion that the party was absolutely negligent. The respondent-decree-holders are entitled to sit back and feel satisfied that the dispute raised by the plaintiff-appellant has come to an end more than 14 years ago and their rights stand settled. It would be highly unfair to the defendant-respondents to re-open the settled issue by condoning the delay. Therefore, no sufficient ground has been shown for condoning the colossal delay of over 10 years. On that account also, the appeal is liable to be dismissed. For the reasons stated above, this appeal fails and the same is dismissed. Appeal dismissed.