IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.M. No. 10867-C of 2008 and
R.S.A. No. 3665 of 2008
Date of decision: 29-1-2009
Prabhu Dayal ... Applicant
-appellant
versus
Raghubir and others ... Respondents
THE HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. Vikram Singh, Advocate,
for the applicant-appellant.
...
ARVIND KUMAR, J:
The present appeal has been preferred by the plaintiff
against the judgment and decrees of the Courts below whereby his suit for
permanent injunction has been dismissed.
The appellant along with the appeal, has filed an
application under Section 151 of the Code of Civil Procedure, seeking
condonation of delay of 808 days in refiling the appeal, merely on the
ground that the clerk of the counsel had inadvertently put the paper-book
of the case in some other brief and this fact came to notice only when the
appellant contacted his counsel for his case and thereafter, the paper-book
of the present appeal was located by the clerk of the counsel. The appeal is
hopelessly time-barred. Under Rule 5, Chapter I, Part A of Volume V of the
Punjab and Haryana High Court Rules and orders, a maximum period of 40
days in refiling the appeal has been prescribed after removal of objections.
However, a liberal approach has been recommended by the Hon’ble
Supreme Court in various judgments. Even in cases where an application
under Section 151 of the Code has been filed seeking condonation of delay
in refiling, the requirements of Section 5 of the Limitation Act,1963, have to
be fulfilled. Ordinarily, this Court would take a liberal view in condoning
the delay but in cases where there is huge delay, that too on flimsy grounds,
then such a discretion cannot be exercised as it would become a mockery of
the law of limitation. No steps were taken for a long time to remove the
C.M. No. 10867-C of 2008 and -2-
R.S.A. No. 3665 of 2008
objections raised by the Registry of this Court. It is the duty of the party
as well to follow his/her case. It cannot be believed that the applicant-
appellant has not bothered to enquire about his case for more than two
years. If he has not taken any interest, it is sheer negligence on the part of
the applicant-appellant. It is settled law that rigour of limitation must
apply where the statute so provides.
In the case of P.K. Ramachandran v. State of Kerala and
another, (1997) 7 Supreme Court Cases 556, it has been held by the
Hon’ble Supreme Court as under:-
” The law of limitation may harshly affect a
particular party but it has to be applied with all its rigour when
the statute so prescribes and the courts have no power to
extend the period of limitation on equitable grounds. The
discretion exercised by the High Court was, thus, neither
proper nor judicious. The order condoning the delay cannot be
sustained. This appeal, therefore, succeeds and the impugned
order is set aside. Consequently, the application for
condonation of delay filed in the High Court would stand
rejected and the miscellaneous first appeal shall stand
dismissed as barred by time.”
It would be highly unfair to the defendant-respondents to reopen the settled
issue by condoning the delay. Therefore, no sufficient ground has been
shown for condoning the delay of 808 days in refiling the appeal. The
application for condonation of delay in refiling the appeal stands dismissed;
consequently, so as the appeal.
( ARVIND KUMAR )
January 29, 2009 JUDGE
JS