SHARDA ARORA Vs. JASBIR SINGH

JUDGEMENT

(1.) This appeal is against the order dated 02.05.2009 by which an application filed by the appellant under Order 41 Rule 21 of the CPC for setting aside the ex-parte judgment and decree passed by the learned lower Appellate Court on 31.01.2008 and for re-hearing of the appeal on merits, has been declined.

(2.) The facts, as narrated before me, are that the plaintiff-appellant filed a suit for possession by way of specific performance on 13.05.1998 against the respondents which was decreed on 27.02.2003. As per the decree, the balance sale consideration was to be deposited within 3 months which was deposited by the appellant on 23.05.2003. Thereafter, the respondents filed statutory appeal under Section 96 of the CPC on 28.04.2003 which was dismissed being barred by limitation as their application for condonation of delay was dismissed by the lower Appellate Court on 05.11.2005. This led to the filing of Civil Revision No.5501 of 2006. The revision petition was allowed by this Court on 30.10.2007 by observing that the lower Appellate Court was very technical as the law settled by the Supreme Court is that the law of limitation has to be liberally construed. It was also observed that the Supreme Court has held that a party does not gain anything by filing the appeal late and in case the limitation is condoned, it only gives an opportunity to get the matter decided on merit, whereas rejection of the application may lead to rejecting the good cause without contest. The case was remanded and the parties were directed to appear before the lower Appellate Court on 14.12.2007. The plaintiff through her counsel appeared on 14.12.2007 and 04.01.2008, but thereafter her counsel did not appear and also did not inform about the date of hearing to the appellant, as a result thereof the appeal was decided ex-parte on 31.01.2008 in favour of the respondents. The appellant applied for the certified copy of the judgment and decree dated 31.01.2008 on 04.03.2008 which was made available to her on 14.03.2008 and on the basis thereof she had filed an application under Order 41 Rule 21 of the CPC on 01.05.2008 along with an application for condonation of delay of 62 days. The said application is contested by the respondents and as a result thereof, the lower Appellate Court framed two issues and allowed the parties to lead their respective evidence. The appellant examined her attorney Rajinder Kumar as AW1 and tendered documents Ex.A1 to Ex.A18. She also examined Dr. Jagdish Goswami as AW2 who testified that Rajinder Kumar, attorney of the appellant, was suffering from heart disease with hypertension with hypercholeterermia and was receiving treatment from him since 07.03.2008 and on 15.04.2008, he was again suffering from the same problem and was advised complete bed rest by him.

(3.) On the other hand, the respondent examined Jasbir Singh as a witness and did not lead any documentary evidence.