Himachal Pradesh High Court
Date Of Decision: 01.05.2025 vs Devi Singh & Ors on 1 May, 2025
2025:HHC:12058
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 126 of 2022
Date of Decision: 01.05.2025
Dharmender Singh .....Petitioner.
Versus
Devi Singh & Ors. .....Respondents.
Coram
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. Ashok Sharma, Sr. Advocate with Mr.
Vinod Chauhan, Advocate.
For the Respondents: Mr. Raju Ram Rahi, Advocate, for
respondent No.1.
Mr. Kulwant Chauhan, Advocate, for
respondents No.4 to 8.
Respondents No.2 to 3 proceeded
against ex parte.
Bipin Chander Negi, Judge
In the case at hand, a Civil Suit bearing No.53 of 2011
had been filed by present respondents No.1 to 3. In the suit so
filed, sale deed executed by predecessor-in-interest of proforma
respondents No.7 in favour of present petitioner and proforma
respondent No.8, had been assailed. Petitioner No.1 along with
predecessor-in-interest of proforma respondent No.7 and
proforma respondent No.8 had filed a counter claim bearing
No.79 of 2012, seeking relief of permanent prohibitory
injunction against present respondents No.1 to 3.
2. The suit filed on behalf of respondents No.1 to 3 was
dismissed by the trial Court and the counter claim filed by the
present petitioner and predecessor-in-interest of proforma
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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respondent No.7 along with proforma respondent No.8 was
decreed. The aforesaid two were decided by a common
judgment and decree dated 30.05.2015.
3. Aggrieved by the same, respondents No.1 to 3 had
preferred one appeal. Since two appeals were to be preferred
against the common judgment and decree dated 30.05.2015,
therefore on realizing the same, a fresh copy of judgment and
decree dated 30.05.2015 was applied for. The same was
supplied to respondents No.1 to 3 on 16.02.2021, within one
month of the same (after deducting the period spent in
obtaining copy and the expiry of the lockdown period), the
second appeal was preferred. Along with the appeal, an
application under Section 5 of the Limitation Act for condoning
the delay in filing the appeal had been preferred. The delay in
filing the second appeal was condoned vide impugned order
dated 06.05.2022.
4. Feeling aggrieved, the present petition has been
preferred.
5. Heard counsel for the parties and perused the
pleadings.
6. At the very outset, learned Senior Counsel appearing on
behalf of the petitioner has drawn the attention of this Court to
the provision of Order 8 Rule 6A CPC. Attention had been
invited to the same to show that a counter claim is to be treated
as a plaint and that the same shall have the effect of a cross
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suit. Other than the aforesaid, attention has been invited to the
provisions of Order 41 Rule 1 CPC specifically the proviso
thereto.
7. Other than the aforesaid, attention of this Court has
been invited to 2013 (12) SCC 649, titled Esha Bhattacharjee
Vs. Managing Committee of Raghunathpur Nafar Academy and
Others, specifically para 21.8 thereto, to show that while
dealing with a case of inordinate delay not only would the
doctrine of prejudice be attracted but a case of inordinate delay
would also require a strict approach in dealing with the same.
8. Besides the aforesaid, attention has been invited to
2014 (XI) SCC 351, titled Brijesh Kumar & Ors. Vs. State of
Haryana & Ors. The same has been referred qua general
principles to be dealt with while considering an application for
condonation of delay.
9. Other than the aforesaid, learned Senior counsel for the
petitioner has placed reliance upon SLP(C) Nos.935-936 of
2021, titled Rajneesh Kumar & Anr. Vs. Ved Prakash decided on
21.04.2024. Attention has been drawn to the same to buttress
his submission that carelessness or negligence on the part of
lawyer cannot be a ground for condoning delay and inordinate
delay.
10. In the case at hand, this Court is not hearing an
application for condonation of delay but in a revision is
examining a discretionary order of the trial Court granting the
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prayer for condonation of delay. In the case of the former,
whether to condone or not would be the only question whereas
in the latter, whether there has been proper exercise of
discretion in favour of grant of the prayer for condonation would
be the question. Law is fairly well-settled that a Revisional
Court should not ordinarily interfere with the discretion
exercised by the Courts below.
11. Insofar as the reference to Order 8 Rule 6A CPC and the
proviso of Order 41 Rule 1 CPC are concerned, the same qua
status of a counter claim and a form of appeal to be preferred
from an original decree are clear. However, when a suit and a
counter claim are decided by a common judgment, whether one
appeal would suffice or two are required to be filed is a
question, which requires consideration of a trained legal mind.
Aggrieved by a common judgment, disposing of a suit and a
counter claim, the best that can be expected of a
prudent/reasonable litigant is that he approaches a lawyer for
guiding him further qua redressal of his grievances within the
parameters of the legal system.
12. In the case at hand, no lack of bona fides can be
imputed to respondents No.1 to 3 in approaching a lawyer for
filing an appeal against the common judgment deciding the suit
and the counter claim. For the fact that one appeal was filed, in
the case at hand, against the common judgment deciding the
suit and the counter claim, the litigant/respondents No.1 to 3
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cannot be blamed. They acted bona fidely as per the advice of
the counsel.
13. Condonation of delay is a discretionary power available
to the courts, exercise of discretion must necessarily depend
upon the sufficiency of the cause shown and the degree of
acceptability of the explanation, the length of delay being
immaterial. An "explanation" helps clarify the circumstances of
a particular event and allows the person to point out that
something that has happened is not his fault, if it is really not
his fault. (See 2023 10 SCC 531, titled Sheo Raj Singh
(Deceased) through LRs & Ors. Vs. Union of India & Anr.)
14. Rajneesh Kumar & Anr. Vs. Ved Prakash, is clearly
distinguishable on facts. Therein in moving the application for
condonation of delay, the party had not approached the Court
with clean hands. It had suppressed the material facts qua
knowledge of the proceedings and had cast serious allegations
on the previous counsel, while seeking condonation of delay. In
the case at hand, respondents No.1 to 3 being diligent, litigants
cannot be made to suffer for the act of the Advocate for not
appropriately advising them with respect to filing two appeals.
15. In the case at hand, insofar as condonation of delay by
the trial Court is concerned, the exercise of discretion in favor of
respondents No.1 to 3 cannot be faulted on the general
principles pertaining to condonation of delay to which reference
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has been made by the learned Senior Counsel appearing on
behalf of the petitioner qua which there can be no Qualm.
16. In view of the aforesaid, present petition is dismissed
being devoid of merits, so also the pending application(s), if
any.
Parties are directed to appear before the learned trial
Court on 26th May, 2025
(Bipin Chander Negi)
Judge
01st May, 2025
(Gaurav Rawat)
