Sukhvinder Singh And Another vs Iqubal Singh And Other

Ajay Mohan Goel, J

By way of this application filed under Section 5 of the Limitation Act, the applicants have prayed for condonation of two years and six months delay

in filing the regular second appeal.

A suit for specific performance of contract filed by respondents/plaintiffs Iqubal Singh and Narinder Kaur was decreed by the Court of learned

Civil Judge, Senior Division, Mandi, District Mandi, H.P., in Civil Suit No.210/ 09/13, titled as Iqubal Singh & another Versus Sukhvinder Singh &

another, decided on 02.09.2015, in the following terms:Â​

“In view of my findings on the various issues, as discussed above, the suit of the plaintiff is partly decreed with cost and a decree for recovery of

Rs.10,50,000/Â is hereby passed in favour of the plaintiffs and against the defendants no.1 and 2. The plaintiffs are entitled to recover this amount of

Rs.10,50,000/Â with interest @ 12% per month from the date of filing of the suit till the realization of the decretal amount. DecreeÂsheet be prepared

accordingly. The file after due completion be consigned to Record Roomâ€​.

The appeal filed by present applicants against the said judgment and decree was dismissed by the Court of learned District Judge, Mandi, District

Mandi, H.P., in Civil Appeal No.17/2016, titled as Sukhvinder Singh & another Versus Iqubal Singh & others, decided on 08.07.2016.

This application has been filed for condonation of delay in filing the regular second appeal against the judgment and decree passed by the Court of

learned Civil Judge, Senior Division, Mandi, District Mandi, H.P. in Civil Suit No.210/09/13, titled as Iqubal Singh & another Versus Sukhvinder Singh

& another, decided on 02.09.2015, as well as the judgment and decree passed by the Court of learned District Judge, Mandi, District Mandi, H.P. in

Civil Appeal No.17/2016, titled as Sukhvinder Singh & another Versus Iqubal Singh & others, decided on 08.07.2016.

Learned Counsel for the applicants has argued that after the decision of the appeal, the appellants have paid an amount of Rs.10,50,000/Â ordered

as compensation, however, further dispute has arisen after the demarcation of the land in issue as it was found that the land which was identified by

respondents No.1 and 2 is not the correct land and the actual land is under the possession of respondents No.1 and 2, who have raised construction

thereupon. Learned Counsel has further argued that as after the payment of the amount in terms of the judgments and decrees passed by learned

Courts below, present appellants are entitled for vacant possession of the land, therefore, the delay in filing the appeal is bonafide, which may be

condoned and the appeal be heard on merit.

Having heard learned Counsel for the applicants as well as nonÂapplicants and having perusing the averments made in the application, in my

considered view, in the peculiar facts of this case, it cannot be said that there is a bonafide delay on the part of the applicants in approaching this Court

by way of regular second appeal. It is the own admission of the applicants that in terms of the judgments and decrees passed by learned Courts below,

they have paid an amount of Rs.10,5000/Â to the plaintiffs. Their grievance appears to be that upon demarcation, as per them, now what is revealed is

this that the land subject matter of the suit happens to be in the possession of the plaintiffs.

Be that as it may, in my considered view, the regular second appeal cannot be used as a tool by the applicants to get back the possession of the land

from the plaintiffs, even if it is to be assumed for the sake of arguments that the suit land happened to be in possession of the plaintiffs. Therefore, as

this Court is not convinced that there is a bonafide delay on the part of the applicants in approaching this Court in filing the regular second appeal, this

application is dismissed.

It is clarified that the observations which have been made by this Court in the course of adjudication of this application, have to be read in personam

only for the purpose of adjudication of this particular application and contents thereof shall not be of any use to be construed as adjudication by this

Court either in favour of the applicants or nonÂapplicants with regard to possession etc. of the suit land, nor the dismissal of this application shall be a

bar for the applicants to pursue such legal remedies as may be available to them against the nonÂapplicants in accordance with law. Application

stands disposed of.