SHAMSHER SINGH Vs. SURJIT SINGH

JUDGEMENT

(1.) THE present revision petition is directed against the order dated 2.9.2014 (Annexure P/6) passed by the Additional District Judge, SAS Nagar, Mohali whereby application for condonation of delay in filing the appeal has been dismissed. The judgment appealed against in favour of respondent Surjit Singh is dated 2.11.2012 against which the appeal was filed on 23.6.2013.

(2.) A perusal of the paper book would go on to show that respondent no.1 filed a suit claiming that one Mohan Singh Pasricha was his real maternal uncle and was owner in possession of Kothi No.411, Phase -4, SAS Nagar, Mohali. It was pleaded that there was a will dated 19.1.2005 in his favour and he thus sought a declaration. General Public was also arrayed as defendant no.6 in the suit which was filed on 9.2.2005. The petitioner filed an application to be impleaded as party in the said suit under Order 1 Rule 10 CPC and was impleaded as party vide order dated 18.1.2011. However, he conveniently chose not to appear and exparte proceedings were initiated against him on 25.2.2011. He thereafter filed an application for setting aside exparte order dated 25.2.2011 which was also dismissed by the trial Court on 6.10.2012. Another application was filed before the trial Court that he intended to file a revision petition against the said order but no such revision petition was filed in this Court. The decree was thereafter passed on 2.11.2012 (Annexure P/2). He applied for the certified copies of the judgment and decree on 23.1.2013 which was prepared and delivered 24.1.2013. He also submitted an application dated 13.2.2013 before the Estate Officer, GMADA, Mohali praying that ownership of the house in question be not transferred to Surjit Singh on the basis of judgment and decree dated 2.11.2012 as he intended to file an appeal. Thus, being aware of the judgment and decree dated 2.11.2012 he chose not to file an appeal even though he was having a certified copy in his hand. The appeal was thereafter filed on 23.6.2013 pleading that his counsel Sh. Kamal Satija did not attend proceedings on his behalf due to illness of his mother who had died in August, 2012. It was also pleaded that Sh. Rajiv Verma, Advocate did not plead his case properly and had not disclosed the date of proceedings to the petitioner and intimate him when he had to appear on the relevant dates or not. It was admitted that he had applied for certified copy on 23.1.2013 and the same was received on 24.1.2013 which was disclosed by his previous counsel on 16.6.2013. The responsibility was thrown upon the counsel that he did not file appeal against the judgment and decree for reasons best known to him inspite of charging fees. Resultantly, delay was sought to be condoned from 2.11.2012 to 23.6.2013. It was also mentioned that he was not aware of the limitation of filing of the appeal.

(3.) RESPONDENT no.1 contested the application and pleaded that intentionally the suit had not been contested and exparte proceedings had been initiated against the petitioner and he had taken time to approach this Court. It was mentioned that he had forged and fabricated the rent agreement, rent receipts and two unregistered wills relating to the property of the real maternal uncle of the plaintiff and even FIR No.416 dated 29.8.2006 under Sections 420, 465, 467, 468, 471, 380,120 -B, 448, 201, 297 IPC had been lodged. Similar reply was also filed by respondents no.2 to 5 regarding forgery of the wills and issue was framed by the Lower Appellate Court in which the petitioner appeared as a witness (PW -1) whereas on the basis of which findings have been recorded by the Lower Appellate Court noticing the facts in detail that the applicant was very well aware about the judgment and decree dated 2.11.2012 when he approached the Estate Officer, GMADA, Mohali on 13.2.2013. The explanation that his counsel Sh. Kamal Satija, Advocate could not attend the proceedings due to illness of his mother stood falsified because he had been regularly appearing on behalf of the applicant and therefore, the petitioner had full knowledge of the proceedings of the suit and he himself was negligent in defending the suit after becoming party. He had never challenged order dated 25.2.2011 whereby he was proceeded against exparte and whereby his application for setting aside the exparte proceedings had been dismissed on 6.10.2012. To deny the relief, reliance was placed upon the judgment in Vashishth Nath and others Vs. Deputy Director, Consolidation/Chief Revenue Officer and others,2013 2 CivCC 179 and Basheer M. Picha Vs. Indian Bank, 2013 3 CivCC 558 wherein it has been held that once dilatory tactics are adopted, the Court has not to accept the explanation given. Resultantly, the application was dismissed. The findings which have been recorded after recording evidence do not justify any ground to show that there was any sufficient cause which could condone the delay for filing of appeal. It is settled principle that once the parties are aware then bar of limitation would take away their rights and law does not protect the ones who sleep over their rights. Reference can be made to the judgment of the Apex Court in Pundlik Jalam Patil (D) by Lrs. vs. Exe. Eng. Jalgaon Medium Project and another, 2009 153 PunLR 128 has observed as under: -