Gursewak Singh vs Usha Gift House

Mahavir S. Chauhan, J.—Respondent has elected not to put in appearance even though served by way of publication of notice. It, therefore, is proceeded against ex parte. Plaintiff-respondent M/s. Usha Gift House had approached the learned trial Court by way of civil suit No. 564 of 1985, for recovery of Rs. 9,000/- on the plea that the defendant-appellant had purchased from it 15 ceiling fans, and five washing machines on credit, on 25.10.1985, for Rs. 8875/- only and had appended his signatures on the bills to signify correctness thereof and to acknowledge receipt of the goods on credit. As per plea of the plaintiff-respondent it was also agreed between the parties that defendant-appellant would also pay interest on the afore-stated amount @2% per mensem. Defendant-appellant having failed to pay the suit amount despite repeated requests, the plaintiff-respondent was constrained to approach the Court.

Defendant-appellant filed a written statement denying all what was stated in the plaint and adding that plaintiff-respondent had brought the suit on the basis of fabricated accounts.

Issues were framed, evidence was adduced, parties were heard and the suit was decreed with costs, vide judgment and decree dated 31.03.1987.

Defendant-appellant invoked the provisions of Section 39 of the Punjab Courts Act read with Section 96 and Order XLI of the CPC assailing the correctness of the findings recorded by the learned trial Court, by filing an appeal. The appeal was barred by time and an application for condonation of delay was made.

Learned Court of Additional District Judge, Faridkot, vide order dated 06.01.1988, dismissed the application for condonation of delay as also the appeal being barred by time.

To challenge order of dismissal of the appeal, as aforesaid, the instant Regular Second Appeal has been brought by the defeated defendant.

I have heard learned senior counsel representing the defendant-appellant.

A perusal of the order dated 06.01.1988 passed by the learned First Appellate Court on the application for condonation of delay reveals that application for obtaining certified copy of judgment and decree dated 31.03.1987 was filed on 10.04.1987, copies were ready for delivery on 25.04.1987 and these were delivered to defendant-appellant on 08.05.1987. The appeal and application for condonation of delay were filed on 18.05.1987, i.e., after a delay of two days. This factum is noticed by the learned First Appellate Court as well. Out of the two days one happened to be Sunday.

Be that as it may, from perusal of the impugned order, it comes out that the learned Appellate Court shied away from disposing of the appeal on merits, instead, adopted a short cut and dismissed the appeal as barred by time. Such an approach can only be termed as pedantic and cannot be appreciated because parties knock at the door of the Court with the hope that they will be heard and justice would be done to them. Effort of the Court should be to resolve the controversy between the warring parties by examining the lis on merits than to throw it away at the very threshold on technicalities such as delay etc., except in those cases where the Court comes to the conclusion that the delay is inordinate, deliberate and has been used by the defaulting party to its own advantage and to the detriment of its adversary. Incidentally, the delay in the instant case is neither inordinate nor has a finding been recorded that it was deliberate and the defendant-appellant had gained something by filing the appeal after a delay of two days.

In view of the above circumstances, I accept the appeal, set aside the impugned order dated 06.01.1988, condone the delay in filing of the appeal and remit the case back to the learned First Appellate Court for disposal of the appeal on merits, as per procedure known to law, within a period of 2 months from the date of receipt of copy of this order, positively as the matter has already been inordinately delayed.

No costs.