VIMLA SOOD Vs. TARLOK CHAND

JUDGEMENT

(1.) This petition arises out of a suit filed under Section 6 of the Specific Relief Act (hereinafter called the Act) which was decreed by the trial Court vide its decree dated August 29, 1981.

(2.) The plaintiff Tarlok Chand filed the suit for vacant possession of a piece of land measuring 116-2/3 square yards alleging that he was in possession thereof since the agreement of sale dated April 2, 1976, and was forcibly dispossessed from the said plot on April 20, 1978. The suit was filed on May, 26, 19-8. In the plaint, it was averred in paragraph 5(b) that the defendants have constructed upon the land in dispute by erecting foundation, one room and one store on it as shown in red colour and marked A.B.C. It has been averred in paragraph 7 of the plaint that the cause of action has arisen from April 20, 1978, when the defendants started the construction till May 10, 1978, when the roofs were completed. Ultimately, it was prayed that the decree be passed for delivering possession of vacant land after demolition of the construction made. The suit was contested, inter alia, on the ground that there was no valid agreement of sale as alleged. The possession was never delivered to the plaintiff. The alleged construction was raised much earlier and the plaintiff never objected to the same. The trial Court framed many issues which were not at all relevant for the purpose of suit under section 6 of the Act. The relevant query in the suit was as to whether the plaintiff was in possession of the suit land within six months prior to the filing of the suit or not. Under issue No. 5, the trial Court found that the plaintiff was in possession of the plot in dispute by putting of wooden pegs thereon and, therefore, the possession was proved. Accordingly, the plaintiff's suit was decreed. Dissatisfied with the same, the defendants filed an appeal in the Court of Additional District Judge, Ludhiana. During the pendency of the appeal, an application was filed on November 15, 1983, on behalf of the plaintiff-respondent in which it was, inter alia, pleaded that the judgment and decree of the trial Court are not appealable and no appeal lies against them so as to give jurisdiction to the Court to entertain the appeal. Reply dated November 17, 1983, to the said application was filed on behalf of the defendant appellant in which the allegations made in the application of the plaintiff were controverted. However, when the appeal came up for hearing on October 23, 1983, a preliminary objection was raised on behalf of plaintiff-respondent that the appeal as such was not maintainable as the suit was filed under section 6 of the Act. This objection prevailed with the lower appellate Court and it was found that the appeal was not maintainable and consequently the same was dismissed being incompetent vide order dated October 23, 1984. Dissatisfied with the same, the defendants have filed this petition in this Court. Along with the petition, an application under section 5 of the Limitation Act for condonation of delay (C.M. No. 5784-C-II of 1984) was also filed.

(3.) The learned counsel for the plaintiff respondents submitted that the revision was liable to be dismissed being barred by time as no ground has been made out for condoning the delay. According to the learned counsel, written objection was filed before the lower Appellate Court, but in spite of that, the defendants proceeded to continue the appeal which was ultimately dismissed being not maintainable. Thus argued the learned counsel, the mistake filing the appeal before the lower Appellate court could not be said to be bona fide in any manner. In support of this contention, he referred to Sarmukh Singh v. Chanan Singh, 1960 AIR(P&H) 512