PRITO Vs. DALIP SINGH

JUDGEMENT

(1.) Plaintiff Smt.Prito @ Pritam Kaur had brought a suit for declaration and permanent injunction against defendant Dalip Singh. After contest that Civil Suit No.366 of 24/12/1997 was dismissed by Additional Civil Judge (Sr.Divn.), Nakodar vide judgment and decree dtd. 31/10/2002. Feeling aggrieved, the plaintiff had filed an appeal before District Judge, Jalandhar, which was assigned Regular Appeal No.71 of 2004 and was entrusted to Additional District Judge, Jalandhar, who vide judgment and decree dtd. 15/12/2004 dismissed the said appeal upholding the judgment and decree passed by the trial Court. Still feeling dissatisfied the plaintiff has knocked at the door of this Court by way of filing present regular second appeal. However, it has been filed belatedly by 1889 days. An application under Sec. 5 of the Limitation Act read with Sec. 151 CPC has been filed by the appellant/plaintiff for condoning the said delay.

(2.) Inter alia, in the application it is contended that after dismissal of the suit by the trial Court on 31/10/2002, the appellant-plaintiff had engaged Sh.Ashok Bajaj, Advocate for the purpose of filing an appeal before District Judge, Jalandhar, who had filed such appeal on 9/12/2002; that during the course of hearing of the appeal, the counsel told the appellant-plaintiff that there was no necessity of her presence during the course of hearing and he would intimate her about the fate of the case; that the appeal was dismissed by the Additional District Judge, Jalandhar vide order dtd. 15/12/2004, however, the counsel representing the appellant-plaintiff there, did not inform her regarding the dismissal of the appeal and she came to know about it from the opposite side; thereafter she approached Sh.Ashok Bajaj, Advocate, who confirmed that the appeal had been dismissed stating that he would file a regular second appeal in the High Court; that the appellant had paid a sum of Rs.5,000.00 as an advance fee to counsel Sh.Ashok Bajaj, Advocate in 2005 itself; that the appellant was informed that the appeal had been filed and waspending in the High Court; that son of the appellant inquired about the case number and date of filing of appeal in the Court and he was taken to Chandigarh for meeting the Advocate but was informed that Advocate was away to foreign country; that despite repeated requests the fate of the appeal was not informed to the appellant; therefore, the appellant was left with no other option but to file a complaint against Sh.Ashok Bajaj, Advocate on 10/10/2009 to Bar Council of Punjab and Haryana at Chandigarh; that after notice by Bar Council appellant came to know that papers were given to counsel at Chandigarh but no appeal had been filed; that the documents had not been returned there; ultimately on 14/5/2010, the appellant was asked to collect the documents from Sh.D.R. Punia, Advocate and she did so on 15/5/2010; that a perusal of certified copy reveals that even certified copy of order dtd. 15/12/2004 had been applied on 16/8/2007 after about three years; that the appellant engaged a counsel for filing the appeal, resulting in delay; that the appellant is an illiterate lady; that she had engaged a counsel, paid his fee but was cheated, in that way delay is not intentional. It has been mentioned that copy of complaint and notices issued to the counsel could be produced before this Court at the time of arguments.

(3.) The application is being resisted by respondent -defendant. In the written reply filed by him, he has contended that the appellant has concocted a story just to cover inordinate delay in filingof the appeal; that the respondent is resident of U.K. and he mostly remains there, as such there was no question of his telling to the appellant about dismissal of the appeal. Therefore, no ground is made out for condonation of gross delay and application be dismissed.