Subhash Chand vs Dev Dutt & Ors
2023 Latest Caselaw 5633 P&H

                                                          Neutral Citation No:=2023:PHHC:060852




CR-6122-2013 (O&M)                             -1-      2023:PHHC:060852

               IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH


                                       CM-20407-CII-2013 &
                                       CM-20408-CII-2013 in/&
                                       CR-6122-2013 (O&M)
                                       Date of Decision :28.04.2023


Subhash Chand                                                    ...Petitioner


                                 Versus


Dev Dutt and another                                         ...Respondents


CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI


Present:     Mr. Raj Kumar Gupta, Advocate for petitioner.

                          ***

Harsimran Singh Sethi, J. (Oral)

CM-20407-CII-2013

Application is allowed as prayed for.

CM-20408-CII-2013

The present application has been filed for condonation of delay

of 17 days in re-filing the present appeal.

Keeping in view the averments made in the application, which

are duly supported by an affidavit, the application is allowed. Delay of 17

days in re-filing the present appeal is condoned.

CR-6122-2013

Present revision petition has been filed challenging the order

dated 16.04.2013 passed by the Lower Appellate Court by which, the

application, filed along with the appeal, for condonation of delay has been

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dismissed and consequently, the appeal preferred by the petitioner-defendant

has also been dismissed.

Certain facts need to be mentioned for the correct appreciation

of the controversy in hand.

Respondent-plaintiff filed a civil suit claiming the specific

performance of the agreement to sell dated 27.3.1991. Notice in the suit was

issued to the petitioner, who was defendant in the said suit. It is a conceded

fact that summons were received by the petitioner-defendant and he had

appeared before the trial Court by engaging a counsel. Not only this, a

written statement was also filed by the petitioner-defendant controverting

the allegations alleged in the suit but thereafter, the petitioner-defendant

absented himself from the proceedings and did not defend the said suit and

was proceeded exparte. Keeping in view the fact that petitioner-defendant

has not put in his defence during the proceedings in respect of the suit filed

by the respondent-plaintiff, petitioner-defendant as he was proceeded

exparte vide order dated 10.04.2010, the trial Court passed the exparte

judgment and decree dated 18.12.2009 against the petitioner-defendant.

Petitioner-defendant filed an appeal challenging the exparte

judgment and decree dated 18.12.2009 of the trial Court along with the

application seeking condonation of delay by pleading that exparte judgment

and decree dated 18.12.2009 was not to his knowledge and the same came to

his knowledge only in March, 2012 when he received the summons for

execution of the exparte decree in question and, hence, delay in filing the

appeal be condoned.

Lower Appellate Court considered the facts mentioned in the

application seeking condonation of delay of more than two years and seven

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months and found that no valid justification was given for not filing the

appeal within time frame and by the impugned order dated 16.04.2013,

application seeking condonation of delay was dismissed and, consequently,

the appeal filed by the petitioner-defendant was also dismissed. Order dated

16.12.2013 passed by the lower appellate Court dismissing the application

seeking condonation of delay in filing the appeal as well as the main appeal

is impugned in the present revision petition.

Learned counsel for the petitioner-defendant argues that in the

facts and circumstances of the present case, delay in filing the appeal needs

to be condoned especially, when due justification was already given before

the Court below that it was only when the summons were received for the

execution of the exparte decree dated 18.12.2009, the said order had came to

the knowledge of the petitioner-defendant and immediately thereafter, he

preferred an appeal therefore, in order to decide the lis between the parties

on merits, the delay in filing the appeal should have been condoned.

I have heard learned counsel for the petitioner and have gone

through the record with his able assistance.

The arguments raised are to be tested on the basis of the facts

and circumstances of the present case as well as the settled principle of law.

It is a conceded fact that petitioner-defendant was served in the

suit filed by the respondent-plaintiff. It is also a conceded fact that

petitioner-defendant filed a written statement controverting the claim of the

respondent-plaintiff and, thereafter, he abandoned the said proceedings and

was proceeded exparte in April, 2009. Once, the petitioner-defendant despite

the knowledge of the pendency of the proceedings abandoned the

proceeding, pleading the fact that he only came to know about the same on

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receiving the summons for execution of ex-parte judgment and decree in

March, 2012 is of no consequences. It is the actions of the petitioner-

defendant which have resulted in a situation that firstly he was proceeded

exparte and, thereafter, an exparte judgment and decree dated 18.12.2009

was passed by the trial Court against him and he did not even challenged the

exparte judgment and decree within time frame prescribed. The petitioner-

defendant is himself to be blamed for passing of an exparte judgment and

decree by the trial Court. Once, the petitioner-defendant abandoned the

proceedings himself and was proceeded exparte, which order was never

challenged by him within the time frame prescribed, order passed by the

Lower Appellate Court so as to reject the bonafide being pleaded, needs no

interference by this Court.

The law on the issue qua condonation of delay has already been

settled by the Hon'ble Supreme Court of India in Civil Appeal No.2474-

2475-2012 titled as Office of the Chief Post Master General and others vs.

Living Media India Limited and another decided on 24.02.2012 wherein, it

has been held that each day's delay is to be explained to show the bonafide

that delay was beyond the control of the applicant seeking condonation of

delay. Further, Hon'ble Supreme Court of India has held that where the

rights of the party have already been crystallized, the said crystallized rights

cannot be taken away merely on the assertions of the application seeking

condonation of delay. Relevant paragraphs of the judgment are as under:-

In our view, it is the right time to inform all the government bodies, their agencies and instrumentality that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process.

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CR-6122-2013 (O&M)                                   -5-      2023:PHHC:060852

The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

Accordingly, the appeals are liable to be dismissed on the ground of delay.

14) In view of our conclusion on issue (a), there is no need to go into the merits of the issues (b) and (c). The question of law raised is left open to be decided in an appropriate case. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs."

In the present case, rights of the respondent-plaintiff to seek

benefit of the judgment dated 18.12.2009 of the trial Court have already

been crystallized. Whether the said rights can be taken away on account of

an application filed by the petitioner-defendant on the ground that

petitioner-defendant only came to know about the exparte judgment and

decree in question in March, 2012 is a valid justification to set aside the

judgment and decree is to be decided in the present case.

As noticed hereinbefore, the petitioner-defendant had already

abandoned the proceedings, which resulted in exparte judgment and decree

dated 18.12.2009. That being so, plea of the petitioner-defendant that as an

exparte judgment and decree in question was not in his knowledge, the delay

should be condoned, cannot be accepted, keeping in view the settled

principle of law noticed hereinbefore as the said explanation is not a valid

justification extended.

Learned counsel for the petitioner-defendant relies upon the

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judgment of the Hon'ble Supreme Court in Civil Appeal No.4575-76-1998

titled as N. Balakrishan vs. M. Krishnamurthy decided on 03.09.1998 to

contend that lapse on the part of the poor litigant should be kept in mind

while deciding the application seeking condonation of delay. Reliance is

being placed on para-13 of the judgment which is as under:

"13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

Bare perusal of the above said paragraph of the judgment

clearly would go to show that it is only when the Court comes to conclusion

that there is no malafide or dilatory tactics on the part of the applicant, relief

of condonation of delay is to be granted and even while granting the relief

Court should not forget the opposite party altogether.

In the present case, non-appearance of the petitioner-defendant

in the suit and his being proceeded exparte shows that the petitioner-

defendant was already having knowledge of the proceedings. Nothing has

come on record as to why, the petitioner-defendant abandoned the said

proceedings and why after the period of 03 years of passing of the exparte

judgment and decree, appeal was not preferred by the petitioner-defendant.

Keeping in view the facts and circumstances of the present case,

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it is not the case where request for condonation of delay was justifiable

especially, when the rights of the other party have already been crystallized.

Hence, no ground of interference by this Court is made out and the present

revision petition is accordingly dismissed.

April 28, 2023                       (HARSIMRAN SINGH SETHI)
aarti                                          JUDGE
            Whether speaking/reasoned : Yes/No
            Whether reportable :        Yes/No




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