SUNDER LAL Vs. BHANWAR LAL

JUDGEMENT

(1.) The question, which arises in this case, is as to whether the delay in filing the appeal should be condoned under Section 5 of the Limitation Act. It is not disputed that the appeal was not filed within the time allowed under the Limitation Act, but the learned counsel for the appellant explained that the delay was caused on account of the fact that the court of the Additional District Judge was situated at Raisinghnagar but the case was heard while the learned Judge was holding a camp court at Suratgarh and that applications for certified copies were submitted at Suratgarh and then at Raisinghnagar and finally at Sri Ganganagar, where the Central Record Room of the District Court is situated. Learned counsel submits that there was sufficient cause for the delay. On the other hand, learned counsel for the respondents Nos. 1 to 4 submitted that under the law a valuable right has accrued to the decree-holders and the same should not be lightly interfered with by this Court by condoning the delay and further that even if the earlier lapse on the part of the appellant may not be taken into consideration, yet there was no explanation at all for the delay of two days i.e. 19th and 20th March, 1982, before the appeal came to be filed on 22nd March, 1982.

(2.) The arguments in the suit were heard by the Additional District Judge on 13th July, 1981 at Suratgarh and thereafter as many as eight dates were fixed for pronouncement of judgment. But the judgment in the suit was pronounced after four months and 22 days, on Dec. 5, 1981 at Raisinghnagar. The appellant's counsel, who normally resided at Ganganagar, came to know about the judgment of the Additional District Judge on Jan 16, 1982. The application for obtaining the certified copies of the judgment and decree was filed on that very day at Suratgarh but on 28-1-82 the application was rejected on the ground that the same was defective. Another application for certified copies was sought to be produced at Raisinghnagar, but the appellant's counsel was informed by the office of the Additional District Judge that the record has been sent to the Central Record Room at Ganganagar. Therefore, an application for certified copies was submitted at Ganganagar on Feb. 2, 1982 and Feb. 9, 1982 was fixed for giving the certified copies. But that application was rejected on Feb. 4, 1982 on the ground that the record had not been received at Ganganagar. From the documents filed by the appellant it appears that the record was sent from the court of Additional District Judge, Raisinghnagar on January 22, 1982 but it was received by the Record-keeper in the Central Record Room at Ganganagar on Feb. 9, 1982. The counsel for the appellant did not make any inquiry about the fate of his application for certified copies filed on Feb. 2, 1982 for over a month. But when the appellant asked him on March 6, 1982 to find out about the certified copies, it was discovered that the said application for certified copies was already rejected on Feb. 4, 1982. Thereafter another application for obtaining certified copies was filed by the learned counsel for the appellant on March 8, 1982 as March 7, 1982 was a Sunday, certified copies were delivered to the counsel for the appellant on March 17, 1982. The counsel for the appellant gave his affidavit on March 18, 1982 and the appellant's case is that he went to his home town Pilibanga after obtaining the file and affidavit from his counsel, and after making the necessary arrangement for funds, the appellant later left for Jodhpur, reaching there on March 21, 1982 and the appeal was presented on March 22, 1982 in this Court. In a subsequent affidavit filed by the appellant with the rejoinder it was stated that the counsel had sent the copies, affidavit and the file of the case to the appellant at Pilibanga on March 19, 1982 and after arranging for money, the appellant came down to Jodhpur and filed the appeal on March 22, 1982, 21st March being a Sunday.

(3.) So far as the earlier delay in filing the application for certified copies is concerned, undoubtedly there was lot of confusion. The appeal was heard at Suratgarh, judgment was pronounced at Raisinghnagar, while the record was sent to the Central Record Room at Ganganagar. Moreover, although the record was sent from Raisinghnagar on Jan. 22, 1982, but it reached the Record- Keeper of the Central Record Room at Ganganagar on Feb. 9, 1982 and it was difficult for the appellant to keep track of the record and submit an application for certified copies at one of the aforesaid places during this period. Actually an application for certified copies filed at Raisinghnagar on January 16, 1982 was rejected on Jan. 28, 1982. When another application for copies was sought to be filed there, then the appellant's learned counsel was informed that the record had already been sent to Ganganagar. Thus, an application for certified copies could not be filed there but was later filed at Ganganagar on Feb. 2, 1982. Although Feb. 9, 1982 was fixed for supplying certified copies on the application, it was dismissed by the Officer-in-Charge of the Central Record Room on Feb. 4, 1982 on the ground that the record had not been received at Ganganagar till then. I am unable to understand as to why this application for certified copies was at all rejected. Even if some more time was taken in transit, the application for certified copies should, not have been rejected, more so behind the back of the appellant and his counsel and before the due date. The application should have been kept pending awaiting the receipt of record from Raisinghnagar. The appellant's learned counsel could have brought it to the notice of the Officer-in-charge of the Central Records that the record had already been despatched from Raisinghnagar. In any view of the matter, application should have been kept pending as the records of the disposed of cases of the month of Dec. 1981 of the court of Additional District Judge, Raisinghnagar were likely to be received in the Central Record Room, if not in Jan. 1982 then at least in Feb. 1982. The rejection of that application led to the filing of another application for certified copies on March 8, 1982 but the copies were actually supplied to the appellant's counsel, Shri P. D. Sharma on March 17, 1983.