SHANKAR SINGH Vs. GRAM PANCHAYAT VILLAGE MOHKAM ARIANA

JUDGEMENT

(1.) PLAINTIFF Shankar Singh has approached this Court under Article 227 of the Constitution challenging order dated 2.12.2005 passed by the Addl. District Judge (Fast Track Court), Ferozepur condoning delay in filing of appeal. The Fast Track Court had condoned the delay on the principal ground that the plaintiff-petitioner was in collusion with Jamuna Bai who was the earlier Sarpanch of the Gram Panchayat who had got the appeal dismissed in default. On the ground of fraudulent conduct of the petitioner and earlier Sarpanch the application filed under Section 5 of the Limitation Act, 1963 (for brevity 'the Act') seeking condonation of delay in filing the appeal has been allowed.

(2.) BRIEF facts of the case are that the plaintiff-petitioner filed a suit for possession of land measuring 45 kanals 16 marlas and also claimed mense profits @ Rs. 10,000/- per acre per year against the Gram Panchayat, respondent. On 12.1.2002 the suit was decreed by the learned Civil Judge (Jr. Division), Ferozepur. A copy of the judgment and decree has been placed on record. An appeal was filed against the judgment and decree dated 12.1.2002 through Jamuna Bai who was the then Sarpanch of Gram Panchayat Village Mohkam Ariana which came up for consideration before the learned Addl. District Judge on 11.3.2002. The appeal was dismissed in default on 17.9.2002 under Order 41 Rule 17 C.P.C. The afore-mentioned order reads as under :

(3.) IT is pertinent to mention that Gurdip Singh through whom the appeal has been filed later on was elected as Sarpanch in the Gram Panchayat election held in June, 2003. On 13.11.2003, the afore-mentioned Gurdip Singh again filed an appeal against the judgment and decree dated 12.1.2002 on behalf of the respondent Gram Panchayat. Alongwith the appeal an application under Section 5 of the Act seeking condonation of delay in filing the appeal was also moved. It was claimed in the application that although the earlier appeal filed through Gurdip Singh was withdrawn as he was not a Sarpanch of the Grain Panchayat at that time. He was not competent at that time to file the appeal. Claiming that he has the right to protect village land and the filing of appeal is in the interest of the proprietors of the village, the delay was stated to be unintentional and was on account of the circumstances explained in the application. After notice and contest by the plaintiff-petitioner disclosing the filing of earlier appeal, the learned Addl. District Judge condoned the delay. The Ld. Addl. District Judge framed an issue as to whether there was sufficient cause for condonation of delay and found that fraudulent conduct of the earlier Sarpanch Jamuna Bai was evident from the record viz. firstly in permitting the passing of judgment and decree dated 12.1.2002 and then non-prosecuting the appeal and allowing it to be dismissed in default by not depositing process fee or munadi fee.