Jhanda Singh vs Des Raj Hans Raj

Rakesh Garg, J.—The suit of the plaintiff-respondent for recovery against the appellant was decreed by the trial Court on 15.12.2008.

Aggrieved from the judgment and decree of the trial Court, appellant filed an appeal before the First Appellate Court. The said civil appeal i.e. Civil Appeal No. 40T of 4.5.2012/19.2.2009 was dismissed by the lower Appellate Court vide impugned judgment and decree dated 15.6.2012.

The instant appeal challenging the aforesaid judgments and decrees of the Courts below has been filed by the defendant-appellant. There is a delay of 659 days in filing the instant appeal. Thus, along with this appeal, civil miscellaneous application i.e. C.M. No. 8047-C of 2014 has also been filed seeking condonation of delay, as noticed above.

As per the appellant, he could not file the instant appeal within limitation as he was under the impression that there was no liability to pay against him, as his appeal i.e. Civil Appeal No. 39T of 4.5.2012/19.2.2009 against a decree dated 15.12.2008 by Sh. Kuldip Singh, P.C.S. Additional Civil Judge (Senior Division), Samana in a suit for recovery filed by M/s. Chetan Parkash Dharampal, Commission Agents, was accepted and suit of plaintiff-M/s. Chetan Parkash Dharampal was ordered to be dismissed and he has come to know about his liability to pay only when he received the summons of execution petition filed by the respondent against him on 23/24.6.2014.

The argument, as raised, is mis-conceived and does not inspire the confidence of this Court.

Appellant was in the knowledge of filing of two suits against him by different plaintiffs, which were decided separately but on the same date i.e. 15.12.2008.

Not only this, he filed separate appeals against both the judgments passed in the civil suits before the First Appellate Court and pursued such appeals. The said appeals were decided separately on the one and the same date i.e. 15.6.2012 by passing separate judgments and decrees.

It is the case of the appellant that he had the impression that he had no liability to pay anything as Civil Appeal No. 39T of 4.5.2012/19.2.2009 was allowed on 15.6.2012 and the suit of M/s. Chetan Parkash Dharampal, Commission Agents was ordered to be dismissed. However, the appellant very well knew about the controversy and the separate decision passed in the appeals. The appellant has contested both the suits by filing separate written statements and had also challenged both the judgments passed in two civil suits knowing very well about the controversy and thus, at this stage, it could not be said that he has not filed the instant appeal within limitation.

In fact, by taking the plea, as aforesaid, in the application for condonation of delay, appellant has tried to mislead this Court. The conduct of the appellant is clearly established from the fact that he has failed to disclose the date when summons were served upon him in the execution application for the first time, whereas, and has filed the instant appeal only when his property was going to be auctioned, in execution of the judgment and decree in question.

For the aforesaid reasons, this Court is of the opinion that sufficient cause has not been established on record to condone such a huge delay of 659 days in filing this appeal is rejected. Thus, the prayer made in the application is rejected. Resultantly, the appeal is also dismissed being time barred.