IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.M. No. 3009-C of 2009 and
R.S.A. No. 1034 of 2009
Date of decision: 5-3-2009
U.H.B.V.N.Ltd and another ... Applicant
-appellants
versus
H.M.M. Coaches Ltd. ... Respondent
THE HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. Narender Hooda, Advocate,
for the applicant-appellants.
...
ARVIND KUMAR, J:
The present appeal, which is by the defendants, has been
preferred against the judgment and decrees of the Courts below whereby
suit of the plaintiffs for declaration with consequential relief of mandatory
injunction has been decreed.
Along with the appeal, an application seeking
condonation of delay of 621 days in filing the appeal has been filed merely
on the ground that Shri Kartar Singh, dealing-hand, who had been pursuing
the appeal before the Courts below, retired from service in July, 2007 and
did not intimate the status of the case to his successor or any other higher
official. Moreover, due to some communication gap between Shri Kartar
Singh and Shri D.S.Danipur, Advocate, the certified copy of judgment and
decree of the Additional District Judge could not be submitted to the higher
Authorities and as such, the same was never made available to the office of
the appellant-Nigam. It has been stated that it is only on receipt of
summons for execution in the above-said case that it was revealed that the
said judgment and decree of the first appellate Court was not available on
the office file and as such, certified copy of the same was applied for on
19.1.2009 whereafter the case was sent to the office of Legal
Remembrancer, Panchkula, on 19.1.2009 and the approval for filing
Regular Second Appeal in this Court was received on 21.1.2009. But it
cannot be said to be a plausible explanation for not filing the appeal within
C.M. No. 3009-C of 2009 and -2-
R.S.A. No. 1034 of 2009
limitation. If the dealing hand of the appellant-Nigam was to retire, then at
the time of his retirement he should have been asked to hand over the
complete charge to his successor and to bring to his knowledge the fate of
the court cases. Thus, it was incumbent upon the appellant-Nigam to know
about the status of the case(s) which the department had been pursuing;
rather it reflects on the casual approach of the Department in which the
matters pending in the Courts are dealt with. It has also been the endeavour
of this Court to hear the parties on merits, but in the facts and circumstances
of this case, this Court is of the considered opinion that the appellant
has been negligent and callous throughout. Although the Hon’ble
Supreme Court has recommended that a pedantic approach should not be
made in the matter, but in the cases where there is huge delay, such a
discretion cannot be exercised as it would become mockery of law of
limitation. No person should be allowed to take undue advantage of such a
concession. The Courts should also not lose sight of the fact that by not
taking steps within the time prescribed, a valuable right accrued to the other
party gets defeated. 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.”
Thus, there being no plausible explanation, this Court finds no
justification for condoning the delay of more than 1½ year in filing the
instant appeal as it would be unfair to the defendant-respondent to re-open
C.M. No. 3009-C of 2009 and -3-
R.S.A. No. 1034 of 2009
the settled issue once again.
Accordingly, the instant application as well as the appeal stand
dismissed.
( ARVIND KUMAR )
March 5, 2009 JUDGE
JS