Tulsi Ram @ Tulsia vs . Parveen Kumar
2022 Latest Caselaw 8492 HP

Citation : 2022 Latest Caselaw 8492 HP
Judgement Date : 14 October, 2022

Himachal Pradesh High Court

Tulsi Ram @ Tulsia vs . Parveen Kumar on 14 October, 2022

Bench: Virender Singh

Tulsi Ram @ Tulsia vs. Parveen Kumar

CMP(M) No. 920 of 2021

14.10.2022 Present: Ms. Atul Jhingan, Advocate, for the applicant/appellant.

Mr. Vivek Sharma, Advocate, for the respondent.

Applicant, namely, Sh. Tulsi Ram @ Tulsia has filed

the Regular Second Appeal under Section 100 of the Code of

Civil Procedure (hereinafter referred to as 'the CPC') against the

judgment and decree dated 27.12.2017, passed by the Court of

learned Additional District Judge-II, Solan, H.P., in Civil Appeal

No. 117 of 2017, titled as Tulsi Ram vs. Parveen Kumar.

2. Since the appeal has been filed after the prescribed

period of limitation, as such, the application, under Section 5

of the limitation Act, has also been filed, for condonation of

delay, which has been registered as CMP(M) No. 920 of 2021.

3. By virtue of this application, the applicant has

sought the condonation of delay of about 4 years and 8

months, in filing the Regular Second Appeal before this Court.

4. The condonation of delay has mainly been sought on

the ground that after passing the impugned judgment and

decree dated 27.12.2017, the copies of the same were obtained

by his counsel Sh. B.S. Dogra, Advocate and he was instructed

to prepare the appeal.

5. According to the applicant, the requisite documents

along with fees of the counsel were supplied/paid to Sh. B.S.

Dogra, Advocate, who was not keeping good health and

unfortunately, expired on 19.02.2019.

6. Apart from this, the applicant has also pleaded the

fact that due to the countrywide lock down, on account of

Covid-19 pandemic, the applicant remained under this

bona fide belief that the Courts were closed and after the

partial withdrawal of the lock down in the month of June,

2020, he had again made efforts to trace the file from the office

of Sh. B.S. Dogra, Advocate, by contacting his son.

7. It is his further case that after obtaining the requisite

documents, he has then instructed his counsel in the month of

September, 2021 and, then, the present appeal has been filed.

8. The application is duly supported by the affidavit of

the applicant.

9. On notice, this application has been contested by the

respondent on the ground that whatsoever allegations, which

have been made in the petition, are stated to be a concocted

story cooked-up by the applicant. The applicant is also stated

to be a chronicle litigant, who is having a number of cases

pending adjudication before this Court.

10. The other averments, which have been mentioned in

the application under Section 5 of the Limitation Act, have also

been controverted on the ground that the decision of the First

Appellate Court has been challenged just to delay the

execution petition which has been filed against the applicant.

11. In other words, it is the case of the non-applicant

that when the applicant came to know about the filing of the

execution petition, then he has cooked-up the story, which has

been mentioned in the application, under Section 5 of the

Limitation Act.

12. Other allegations have also been controverted by the

respondent in this case. Thus, a prayer has been made to

dismiss the application.

13. The averments made in the reply, have also been

supported by the affidavit of the non-applicant-Parveen Kumar.

14. In rejoinder, the factual position, as contained in the

reply has also been controverted.

15. Prima facie, in this case, the explanation, which has

been given for condonation of delay of more than 4 years is

attributed to the fact that after the decision of the case of the

First Appellate Court, the papers were handed over to Sh. B.S.

Dogra, Advocate, with the instructions to prepare the appeal.

In view of the fact that Sh. B.S. Dogra, Advocate, is no more in

this world, this Court is of the opinion that the allegations need

not to be dwelled into.

16. Admittedly, Execution Petition has been filed against

him by the non-applicant, but, considering the fact that the

applicant has unsuccessfully contested his appeal before the

First Appellate Court, as such, he is not going to achieve

anything by filing the appeal, after the prescribed period of

limitation, had he not been prevented by the reasons, so stated

in his application, under Section 5 of the Limitation Act.

17. It would be apt to reproduce para-9 of the judgment

rendered by the Hon'ble Supreme Court in case, titled as N.

Balakrishnan vs. M. Krishnamurthy, (1998) 7 Supreme

Court Cases 123, as under:-

"It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised

only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other

cases, delay of a very long range can be condoned as

the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of

discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such case, the superior court would be free to consider the

cause shown for the delay afresh and it is open to such superior court to come to its own finding even

untrammeled by the conclusion of the lower Court."

18. In view of the above, this Court is of the view that the

applicant is not going to achieve anything by not filing the

appeal within the prescribed period of limitation, as such, the

delay in filing the appeal has been explained to the satisfaction

of this Court.

19. Considering the above facts, the application is

allowed and the delay in filing the Regular Second Appeal is

ordered to be condoned.

20. Application is, thus, disposed of.

RSA No. ___________ of 2022

21. Be registered.

22. By virtue of the order of even date, while deciding