SUBHASH CHAND Vs. KUSAM LATA AND ORS.

JUDGEMENT

(1.) This petition is instituted against Order dated 25.5.2011 passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in CMA No. 137/2010. "Key facts" necessary for the adjudication of the present petition are that Civil Suit titled Kusum Lata versus Ashok Kumar and others bearing No. 38/2005 was decided by the learned Civil Judge (Senior Division), Dehra, District Kangra, on 25.9.2008. Suit was decreed and a preliminary decree for possession was ordered to be passed in favour of the plaintiff. Petitioner alongwith Subhash Chand and Ram Piari filed an appeal against the judgment and decree dated 25.9.2008 before the learned Additional District Judge, Fast track Court, Kangra at Dharamshala, which was barred by limitation, Application was filed for condonation of delay. According to the averments made in the application, though suit was contested by defendants but there remained communication gap between them and their Counsel. Defendants were laymen. They came to know about the judgment and decree dated 25.9.2008 only when execution was filed by the plaintiff before the trial Court. There is delay of one year and four months. According to the reply filed by the plaintiff delay in filing appeal is deliberate and intentional. Shri Subhash Chand was present at the time of arguments and when judgment was announced.

(2.) Judgment and decree are dated 25.9.2008. Certified copy was applied on 18.01.2009. It was supplied to the defendants on 25.11.2009. Appeal was filed only on 15.2.2010. Defendants have miserably failed to make out a case for condonation of delay. Appeal has not been filed even after obtaining copy on 25.11.2009 and the same was filed on 15.2.2010. Defendants were not vigilant about their right. It is settled law that liberal approach should be adopted in condoning delay if the delay is shorter and stricter approach is to be adopted in case of inordinate delay. Court can not be oblivious of the rights accrued in favour of the plaintiffs, after preliminary decree was passed on 25.9.2008.

(3.) Their Lordships of the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, 2010 5 SCC 459 have held that the liberal approach should be adopted in condoning the delay of short duration and stricter approach in cases of inordinate delay. Their Lordships have held as under: