Gurbachan Singh vs Mastan Singh, etc.

K.S. Tiwana, J.—While disposing of Civil Miscellaneous Applications No. 697-C-I of 1978 and No. 231-C-I/1980. Gurbachan Singh v. Mastan Singh etc in Regular First Appeal No. 665/ 1978, vide orders dated March 7, 1980, the applications for condonation of delay filed by the Petitioner were dismissed and consequently, the appeal, too, was dismissed as barred by time. Number of the later application was not mentioned in the order by inadvertance. The facts in detail are given in that order.

The Petitioner filed this review petition on 28.4.1980. The ground urged is that the point on which the appeal was held to be barred by time was not urged by the parties in the course of arguments. This has been controverted by the Learned Counsel for the Respondent during arguments.

The other points urged are that on the basis of the judgment, referred to in the review petition, after deducting the time spent in the District Court, Ludhiana, the appeal was still in time.

The Learned Counsel for the parties were heard at length.

It was stated by the Learned Counsel for the Petitioner that the suit was decided by the trial Court on April 22, 1976 and the appeal was filed in the District Court on July 14, 1976. As per endorsement on the copy of the judgment filed with the memorandum of appeal, the application to obtain the copy of the judgment and decree was filed on 23rd April, 1976. The copy was delivered on 21st May, 1976. The time spent to obtain the copies comes to 29 days. The memorandum of appeal was returned on 10th February, 1978 by the Additional District Judge, Ludhiana for presentation to the High Court It was filed in this Court on February 16, 1978. The Appellant u/s 14 of the Limitation Act is entitled to deduct the time spent in a wrong court, that is, the Court of the additional District Judge, Ludhiana. The Appellant cannot be said to be guilty of negligence in presenting the appeal in the wrong forum. He had engaged Mr. Sukhpal Rai Wadhera, one of the leading lawyers. He had filed the appeal before the District Judge, Ludhiana after 82 days of the decision of the case. After deducting 29 days spent for obtaining the copies, the total days spent by him come to 53. After "ix days of the return of the memorandum of appeal from the District Court, Ludhiana. he filed the appeal in the High Court. He thus presented the appeal in this Court within time. He has prayed that the order of March 7, 1980 dealing with this fact may be reviewed and recalled.

It was urged by Sh. R.S. Bindra, Senior Advocate that once the appeal is filed, it has to be taken to remain on the record of the Court even if the memorandum of appeal is returned by the High Court to the party for removing certain defects. In his view, unduly longtime spent by the Petitioner, which has been considered as unexplained in the order dated March 7, 1980, requires to be ignored. Pritkvi Raj v. Smt. Kamal Kanta (1980) 82 P.L.R. 155, a Division Bench decision of this Court which covers this point also. This judgment was relied upon by me in the order dated March 7, 1980 for dismissing the appeal of the Petitioner, being barred by time. Prithvi Roj''s case (supra) has been followed in F.A.O. No. 117-M of 1981 (Smt Kusum Lata v. Rakesh Mohan Pathak) F.A.O. 117-M of 1981 decided on 10th November, 1983. Mr. R.S. Bindra, Senior Advocate, urged that the Rules framed by the High Court, providing a limitation of 40 days for the removal of defects pointed out by the Registry of this Court, should be taken to be of a directory nature. Since once, according to htm, a memorandum of appeal is filed under Order 41 Rule 1, Code of Civil Procedure, it cannot be rejected on any other ground than the one contained in Order 41 Rule 3 of the same Code. These rules have been made by the High Court to further the ends of justice. A party cannot be given undue latitude in complying with the orders of the Registry to remove the defects pointed out in appeal. The Appellant cannot be permitted to move at leisure. If great latitude is given to the litigants then they might not only take months but years for complying with the orders. The Appellant in this case took 85 days to refile the appeal after removing the defects pointed out by the Registry. Such misuses require to be checked.

In view of Prithvi Raj''s case (supra) no effective ground has been made out on behalf of the Petitioner to persuade me to take a view contrary to that binding precedent of this Court.

Finding no ground in the review petition, I dismiss the same.