GOVIND SINGH PARIHAR Vs. RAMVILAS & ANR

JUDGEMENT

(1.) The office has reported that the appeal is barred by 523 days.

(2.) An application under Section 5 of the Limitation Act has been filed by the appellant, inter alia, with the submissions that the appellant has got a strong case, inasmuch as, the Division Bench judgment, which forms the basis of the impugned decree has been overruled by a Larger Bench of this Court; the appellant Govind Singh Parihar resides in England and his affairs are looked after by his power of attorney holder Deepak Parihar, who did not contact the counsel representing the appellant in the trial court as he was informed about pendency of issue before the Larger Bench and as soon as the power of attorney holder received information from the counsel in September, 2009, the appeal was filed without any further loss of time. It has been prayed that the delay in filing the appeal be condoned and the same may be heard on merits. The application is supported by affidavit of Deepak Parihar, the power of attorney holder.

(3.) A reply to the application has been filed by the respondents, inter alia, opposing the prayer for condonation of delay. It is, inter alia, indicated that the judgment impugned was passed based on the law as it then prevailed and there is no reason for the power of attorney holder not to contact his lawyer. It is further submitted that contention about lawyer informing about pendency of the issue before the Larger Bench is apparently baseless as the issue was referred to the Larger Bench only after the impugned judgment and decree was passed. Ultimately, it was prayed that the application under Section 5 of the Limitation Act and the appeal be dismissed. Making submissions on behalf of the appellant learned counsel submitted that though appellant may be guilty of a bit of negligence, the circumstances of the case are such that the delay deserves to be condoned. It is submitted that admittedly the foundation of the impugned judgment and decree already stands overruled by the Larger Bench of this Court and the respondents can at best be compensated by payment of cost. It is further pointed out that a similar nature of appeal with a similar delay was filed by the appellant, wherein, the delay was condoned by this Court in S.B. Civil Regular First Appeal No.626/2011 (Govind Singh Parihar v. LRs of Bhikam Chand Bohra) decided on 15.12.2012. Reliance was also placed on Collector, Land Acquisition v. Mst. Katiji & Ors., 1987 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy, 1998 7 SCC 123, Union of India v. Giani, 2011 11 SCC 566, State of Maharashtra v. Maimuna Begam, 1994 AIR(Bom) 353 and Sangram Singh v. Election Tribunal, Kotah, 1955 AIR(SC) 425. Learned counsel for the respondents opposed the submissions and submitted that the appellant has apparently not brought out the true facts before this Court and the plea raised by the appellant is apparently contrary to the record. It is, inter alia, submitted that the impugned judgment was passed on 18.03.2008 based on judgment dated 07.12.2007 passed in the case of Kamal Kishore & 16 Ors. v. State of Rajasthan, 2007 3 DNJ 1743, whereafter the said judgment in the case of Kamal Kishore was referred to the Larger Bench in Bhag Chand v. Addl. District Judge No.5, Kota & Ors., 2008 3 RajLW 1857 on 25th April, 2008 (Raj.) and the said Larger Bench reference was decided on 04.05.2009 in Bhag Chand v. Addl. District Judge No.5, Kota & Ors., 2009 2 DNJ 704, whereby, the judgment in the case of Kamal Kishore was overruled. As on the date of passing of the impugned decree the matter had not even been referred to the Larger Bench, therefore, the plea raised in this regard is apparently incorrect. It was further submitted that the appellant had accepted the impugned judgment, however, in view of the Larger Bench decision, the appeal has been preferred and the fact that the judgment has been subsequently overruled cannot be a sufficient cause for condonation of delay in filing the appeal. Reliance was placed in the case of Basdeo & Ors. v. Murli Dhar Singh & Ors., 1942 AIR(Oudh) 447.