R.S.A. No. 622 of 2009 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 622 of 2009 (O&M)
Date of decision: 05.02.2009
Punjab School Education Board
....Appellant
Versus
Rachhpal Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. B.M. Singh, Advocate,
for the appellant.
*****
VINOD K. SHARMA, J (ORAL)
C.M. No. 1756-C of 2009
This application under Section 5 of the Limitation Act is for
condoning the delay of 22 days in filing the appeal.
It has been averred in the application that the appeal was
prepared and handed over to the counsel for being filed in time, but it
was due to vacation and non-availability of the counsel in station that the
appeal could not be filed in time. Thus, there occurred a delay of 22
days.
The application is supported by an affidavit. The averments
make out a sufficient cause for condonation of delay. Consequently, the
R.S.A. No. 622 of 2009 (O&M)
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C.M. is allowed and the delay of 22 days in filing the appeal is
condoned.
R.S.A. No. 622 of 2009
This regular second appeal is directed against the judgments
and decree dated 7.12.2004 and 2.9.2008 passed by the learned Courts
below vide which the suit filed by the plaintiff/respondent for damages
stands decreed.
The plaintiff/respondent appeared in 10+2 examination held
by the appellant in March1998 under Roll No. 2409881.
The plaintiff/respondent was declared to have passed the
examination, but the appellant failed to issue him detailed marks card,
and the certificate declaring him as successful candidate, in examination
in time. The case set up by the plaintiff/respondent was, that in spite of
several personal requests and legal notice having been served, the
detailed marks card and the certificate was not issued.
The plaintiff/respondent had to file civil writ petition No. 2787
of 2000. It was only after this Court issued notice, that the appellant
issued detailed marks card and the certificate. The certificate was issued
on 7.4.2000 i.e. almost two years after passing of the examination.
The plaintiff claimed damages on the plea that he lost two
years of his career, as he could not take admission in various courses like
JBT etc. It was further the case of the plaintiff that he had to sit idle at
home for a period of two years. The claim of Rs.5,00,000/- (Rupees five
lac only) by way of damages was raised. He also claimed, to have
suffered loss of Rs.20,000/- (Rupees twenty thousand only) for fighting
litigation.
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On notice having been issued, the defendant/appellant
contested the suit by taking preliminary objections that plaintiff had no
locus standi to file the suit. On merits of the suit plea was raised, that
the plaintiff deposited the requisite fee on 24.2.1999 and 20.1.2000 vide
reciept No. 033392 and 464195, but he failed to submit the registration
number, which was necessary for issuance of detailed card.
It was thus pleaded that the delay in release of detailed mark
card, and the certificate was due to inaction on the part of the plaintiff.
Plea was also raised that record upto the year 1996 qua registration had
been destroyed in the year 1998. The factum of the writ having been
filed was admitted, which was said to have been dismissed on the
statement of senior legal adviser, and also in view of the fact that the
detailed mark card and certificate, as demanded, stood issued.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues: –
“1. Whether the defendant is negligent in delaying the
issuing of certificate 10+2 examination to the
plaintiff? OPP
2. If issue No. 1 is proved, whether the plaintiff is
entitled to recover damages from the defendant
and if so to what extent? OPP
3. Whether the plaintiff has got no locus standi to file
the present suit?
4. Whether the plaintiff is barred from filing the suit
due to his own act and conduct? OPD
5. Whether the suit is not maintainable as the Court
fee has not been affixed? OPD
6. Whether the plaintiff has no cause of action? OPD
7. Relief.”
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On appreciation of evidence, the learned trial Court held that
the defendant/appellant was negligent for delay in issuance of certificate
of 10+2 examination to the plaintiff. However, the learned trial Court
held that the plaintiff was entitled to only Rs.25,000/- (Rupees twenty
five thousand only) as damages, as it was said to be reasonable
compensation for the negligence.
Issue Nos. 3 to 6 were not pressed and thus decided against the
appellant/defendant. Consequently, the suit stands decreed for a sum of
Rs.25,000/- (Rupees twenty five thousand only).
The learned counsel for the appellant contends that the finding
of the learned trial Court qua negligence is perverse, in view of the
finding of fact recorded that registration number was not given by the
plaintiff in the application.
This plea of the learned counsel for the appellant cannot be
accepted, the learned trial Court rightly held appellant to be negligent as
the plaintiff, at no stage, was apprised of the fact that his detailed mark
card was not being issued due to incomplete registration number. The
marks sheet and certificate was immediately issued after plaintiff filed
writ and notice was issued.
The appeal filed by the appellant stands dismissed being time
barred.
The stand taken for condonation was that delay had occurred
due to administrative reasons, as the procedure to file the appeal by
appellant is cumbersome and number of sanctions, are required to be
taken.
However, the learned lower appellate Court rejected this plea
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by observing as under: –
“Not only this, in para 2 (VI) of the application it has
been stated that the competent authority appended its
signature on the memorandum of the appeal on 9.2.2005
but contrary to this the memorandum of appeal carries
two dates i.e. 19.1.2005 and 3.5.2005 without indicating
as to who signed the memorandum of appeal on which
of the two dates. The affidavit, Ex. A.1., placed on
record in support of the application compounds the
matter further as in para 2 (vi) thereof it has been stated
on oath by the sole witness of the applicant, namely,
Varinder Madan, that the memorandum of appeal was
signed by the competent authority on 13.4.2005. The
melee has not been attempted to be explained.”
The learned counsel for the appellant contends that this finding
of the learned lower appellate Court cannot be sustained, as after the
signing of the appeal, the sanction for Court fee was required and
unxplained time was spent in that process. Thereafter the appeal was
filed immediately.
However, this plea cannot be accepted. Firstly, for the reason
that whether the sufficient cause for condonation of delay exists is a
question of fact. Once on appreciation of evidence brought on record,
the learned lower appellate Court has held that no sufficient cause is
made out for condonation of delay, this Court cannot reappraise the
evidence to come to a different conclusion.
The learned counsel for the appellant has placed reliance on
the judgment of the Hon’ble Supreme Court in AIR 1996 Supreme Court
1623 to contend that there should be liberal approach in condoning the
delay, as by condonation of delay the parties get right to have their
matter adjudicated on merits.
There can be no dispute with this proposition of law.
However, the liberal approach cannot be extended to negate the
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provisions of the Limitation Act.
Once it is proved on record that the delay is on account of
sheer negligence, as held by the learned lower appellate Court, the
application for condonation of delay could not be said to have been
wrongly dismissed. The learned lower appellate Court thus was justified
in dismissing the appeal as time barred.
The appeal raises no substantial question of law for
consideration by this Court.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
February 05, 2009
R.S.