IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 3200 of 2008 (O&M)
Date of Decision : 12.1.2009
Haryana Urban Development Authority & another
.......... Appellants
Versus
Vikram Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. R.S. Madan, Advocate
for the appellants.
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VINOD K. SHARMA, J. (ORAL)
C.M. Nos. 9556-57-C of 2008
This is an application under Section 5 of the Limitation Act for
condoning the delay of 51 days in filing the appeal.
It has been averred in the application that the delay in filing the
appeal has occurred due to administrative procedure involved in taking a
decision to file appeal.
The condonation of delay only entitles a party to contest the
claim on merit and once it is proved on record that the delay has occurred
due to the administrative procedure involved, it is to be held that sufficient
ground is made out for condoning the delay of 51 days in filing the appeal.
The C.M. is allowed. The delay of 51 days in filing the appeal is condoned.
R.S.A. No. 3200 of 2008
This regular second appeal is directed against the judgments
R.S.A. No. 3200 of 2008 (O&M) -2-
and decrees dated 24.4.2007 passed by the learned trial Court and dated
1.4.2008 passed by the learned lower appellate Court vide which suit filed
by the plaintiff-respondent seeking permanent injunction restraining the
appellant-defendant from blocking the passage by raising a wall, has been
ordered to be dismissed.
It is undisputed fact that plaintiff is owner of land, where
construction has been raised and he is also carrying on the agricultural
pursuits. The remaining land of the plaintiff-respondent stands acquired.
The case set up by the plaintiff-respondent was that the passage
being blocked by the appellant-defendant, is the only passage to his land
and, therefore, he was entitled to injunction on the principle of easement of
necessity. It was also claimed that said passage was being used by the
plaintiff-respondent for over 30 years without any interference.
The suit was contested by taking a plea that there is an
alternative passage available to the plaintiff-respondent from the main old
Delhi Gurgaon road.
In order to find out the true position, the learned trial Court was
pleased to appoint a Local Commissioner, who submitted his report Ex.
PW4/A. In the report it was specifically mentioned that there was no other
passage to the land of the plaintiff-respondent except the passage in dispute.
The appellant did not file any objection to the said plea and, therefore, on
the basis of evidence brought on record a concurrent finding of fact has
been recorded by the learned Courts below that except the passage in
R.S.A. No. 3200 of 2008 (O&M) -3-
dispute, which was sought to be blocked, there is no other passage to the
land of the plaintiff-respondent. The suit stands decreed.
The finding of fact recorded by the learned Courts below is
based on appreciation of evidence. The appeal, therefore, raises no question
of law muchless a substantial question of law, to interfere with the
concurrent finding of fact.
There being no merit, the appeal is ordered to be dismissed.
12.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE