BHAG CHAND Vs. NEELIMA JASKARAN BARAR & ORS

JUDGEMENT

(1.) By medium of this application, the applicant has sought condonation of 1 year, 4 months and 26 days delay that has crept up in filing the appeal.

(2.) It has been averred that the impugned judgment and decree was passed by the learned first appellate Court on 30.09.2016 and the applicant through his counsel applied for a certified copy thereof on 03.10.2016 as 1st and 2nd Oct., 2016 were holidays. However, the applicant could not file the appeal within the prescribed period due to the reason that after the decision by the learned first appellate Court, the applicant remained occupied in taking care of his brother-in-law, who remained seriously ill at Jaipur (Rajasthan) and ultimately died in June, 2017. The applicant thereafter on the assurance given by one Pankaj Gupta son of Bansi Dhar handed over the case file to him in July, 2017 as he had been contesting other associated cases regarding the same land in his individual capacity. The applicant was assured by Shri Pankaj Gupta that he would pursue the appeal before this Court and, thus, remained under bonafide belief that Shri Pankaj Gupta was, in fact, pursuing the appeal. However, when the applicant in the 2nd week of Jan., 2018 enquired from Shri Pankaj Gupta regarding the status of the appeal, it was then he learnt that Shri Pankaj Gupta had, in fact, not preferred any appeal. The applicant then contacted his counsel at Solan and requested him to prefer an appeal. He informed that there was winter vacation in the High Court and the Court will be re-opening in the last week of Feb., 2018. He accordingly in the third week of Feb., 2018 got the appeal drafted and prepared and the same was immediately filed on the re-opening of the Court on 26.02.2018. It was on account of this fact that the delay in filing of the appeal occurred and it was neither intentional nor deliberate and should, therefore, be condoned.

(3.) The respondents contested the application by filing a detailed reply, wherein it has been stated that 1st & 2nd Oct., 2016 were working days and the applicant could have conveniently applied for grant of certified copy as was done by them. It is further averred that the applicant has concocted story to seek condonation of delay on the ground that he had to take care of his brother-in-law whereas no particulars of his brother-in-law or his treatment have been placed on record. It has been further averred that the story regarding the handing over of the case to Shri Pankaj Gupta is also false or else the applicant should have filed the affidavit of Shri Pankaj Gupta to this effect. Moreover, no such appeal has, in fact, been filed by Shri Pankaj Gupta in this Court as no notice thereof has been received by the respondents. If such story was true, the applicant could have executed power of attorney in favour of Shri Pankaj Gupta so as to enable him to file the appeal before this Court. Lastly, it is averred that the applicant himself is negligent in pursuing the appeal or else there would have been no reason why he did not bother for over six months to enquire from Shri Pankaj Gupta, regarding the fate of the appeal.