CHUHAR SINGH Vs. RAJINDER SINGH & ORS.

JUDGEMENT

(1.) By medium of this application, the applicant has sought condonation of 4 years, 8 months and 16 days delay that has crept up in filing of the appeal.

(2.) It was averred that the applicant is 95 years old and had himself being pursuing the entire litigation and had also filed the suit out of which the judgment under challenge has arisen. The son of the applicant retired from the armed force on 30.09.2016 and returned to his native place. After settling down, he enquired about the properties and ongoing litigation whereafter the applicant informed that the suit which was filed by him for injunction and possession had been partly decreed and in the appeal the same had been affirmed. The execution proceedings filed by the applicant had been dismissed as satisfied. The son of the applicant thereafter consulted with the present Counsel at Shimla in the first week of January, 2018, whereafter the Counsel advised the applicant and his son to file an appeal before this Court. It was further advised that applicant should get the entire record of the case so as to prepare the appeal as the sufficient time had already elapsed after passing of the judgment and decree by the learned first appellate Court on 29.09.2013. It is claimed that the delay in filing of the appeal had occurred only on account of the old age of the applicant and his deteriorated health.

(3.) Respondents No. 1 to 5 contested the application by filing reply wherein preliminary objections that the application in the present form neither competent nor maintainable for the simple reason that the judgment and decree passed by the learned first appellate Court had attained finality as the present application had been filed after the expiry of 4 years 8 months and 16 days. It was further claimed that while filing the application, the applicant has concealed the material facts and the instant application has been filed as a counter blast to FIR No. 12 of 16, registered at Police Station, Nahan on 08.02.2016 on the complaint of Paramjeet, wife of respondent No.1, who was given beatings by the applicant and his sons and the grandsons. It was also averred that since the applicant does not disclose any sufficient cause for condoning the delay, therefore, the same deserves to be dismissed. The preliminary objections were reiterated and elaborated in the reply on merits.