CR No. 6570 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.6570 of 2008
Decided on : 28-11-2008
Didar Singh
....Petitioner
VERSUS
Nirmal Singh and others
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Vineet Chaudhary, Advocate for the petitioner.
MAHESH GROVER, J
This revision petition is directed against the order of the
Additional District Judge, Ambala dated 1st October, 2008 by which an
application under Section 5 of the Limitation Act preferred by the
respondent was allowed. Petitioner Didar Singh instituted a suit for
possession of the land by way of specific performance of the agreement to
sell dated 22.3.90 against Bhag Singh, his wife Gurmail Kaur and minor son
Nirmal Singh praying for a direction that the defendants in the suit be
directed to execute the sale deed in his favour. The gift deed in favour of
Gurmail Kaur and Nirmal Singh was also challenged by way of civil suit
no.60 of 14.2.1990. The suit was contested by the defendants to contend
that the gift deed was perfectly valid and the agreement to sell was denied.
The Trial Court decided all the issues in favour of the respondents and
decreed the suit in the year 1999 against which an appeal was preferred by
the present respondent Nirmal Singh, the minor son of Bhag Singh who
preferred the appeal through his paternal uncle for setting aside the decree.
CR No. 6570 of 2008 2
Alongwith appeal an application under Section 5 of the Limitation Act was
filed. The Appellate Court partly accepted the appeal vide its order dated
12.4.2002 and passed a decree for recovery of Rs. 20,000/- alongwith
interest at the rate of 9% per annum from the date of execution of the said
agreement in favour of the present petitioner and against the respondent.
The application under Section 5 of the Limitation Act remained un-
answered. In Regular Second Appeal no. 2711 of 2002 this Court vide its
order dated 17.8.2007 remitted the matter back to the Appellate Authority to
decide the application under Section 5 of the Limitation Act and thereafter
proceeded to determine the controversy.
Pursuant to the above, the said application has now being decided
vide impugned order dated 1.10.2008. Learned counsel for the petitioner
contended that the appeal was filed after an inordinate delay of 942 days
and, therefore, there was no sufficient reason for the Appellant Authority to
have condoned the delay. That apart it was contended that minor Nirmal
Singh had attained the age of majority in the year 2003 and there is no
cogent explanation why the application has been accepted now in the year
2008. Further it was contended that the minor was always represented by
his father who was watching his interest and therefore, no prejudice was
caused to him and consequently application under Section 5 of the
Limitation Act could not have been decided in his favour.
I have heard learned counsel for the petitioner.
Concededly when the Appellate Authority passed the order on
12.4.2002, the respondent was a minor. The matter was remanded back
under the orders of this Court. Therefore, the Appellate Authority was
under a bounden duty to decide the application under Section 5 of the
CR No. 6570 of 2008 3
Limitation Act as it existed on that particular date when it was filed.
Respondent being a minor was entitled for the protection of the Court as
well. No such application apparently had been moved for appointment of
Court Guardian. His plea that his father was not prosecuting his case was
further borne out from the fact that his father Bhag Singh neither led any
evidence and rather permitted an ex parte order to come into existence
against him.
In this view of the matter, impugned order cannot be said to be
suffering from any infirmity as the Court has given reasons for the
condonation of delay.
No merit.
Dismissed.
November 28 , 2008 (Mahesh Grover) rekha Judge