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2011 Supreme(SC) 1045
2011 (7) Supreme 448
SUPREME COURT OF INDIA
Asok Kumar Ganguly and Gyan Sudha Misra, JJ.
Poonam & others — Appellant(s)
versus
Harish Kumar and another — Respondent(s)
Civil Appeal No.9059 of 2011
(Arising out of Special Leave Petition (C) No.18191/2009)
Decided on : 3-11-2011
IMPORTANT POINT
Delay, if explained, should be condoned.
Headnote:(a) Administration of justice – Judicial discretion – Judicial discretion is always be exercised “according to the rules of reason and justice and not according to private opinion”. (Para 14)
(1891 AC 193 – Relied upon
(b) Appeal – Delay – The three appellants, all ladies – One pursuing the case on behalf of all – Falling ill – Delay of 63 days in filing appeal – Properly explained – Refusal of condonation – Not proper. (Para 15)
Facts of the case:
This case relates to delay in filing an appeal and condonation of the period beyond limitation.
Finding of the Court:
There being plausible reason fr delay ogf 63 days in filing the appeal, courts below erred in refusing its condonation.
JUDGMENT
Ganguly, J.
1. Leave granted.
2. This civil appeal is directed against the order dated 01.12.2008 of the High Court of Punjab and Haryana at Chandigarh in Civil Revision No.3745/2008, whereby the High Court declined to interfere with the order dated 27.07.2007 of the District Judge, Ambala. By order dated 27.07.2007 the District Judge dismissed the application for condonation of delay of 63 days in filing the appeal against the judgment of the trial court in Civil Suit No. 23/2003.
3. The facts and circumstances, which are relevant to this appeal, are as under.
4. All the appellants no. 1 to 3 are sisters of Respondent no. 1, who is their brother. The father of the parties died on 17.01.2003 and the mother had predeceased the father. Eight daughters and one son survived their father. The father during his lifetime arranged the marriage of six daughters except the appellant no. 1 & 2 herein.
5. In the year 2003, the appellants brought a suit (CS no. 23 of 2003) before the Civil Judge, Ambala City for declaration of their title as 3/9th owner each, of the suit scheduled properties and for permanent injunction restraining the Respondent no.1 from interfering with their peaceful possession and creating any third party rights in the said properties. According to the appellants- plaintiffs, the suit schedule properties were their ancestral property in which plaintiffs have got right by birth and all of them have got equal shares in the same.
6. The Respondent no. 1 controverted the aforesaid averment of the appellants-plaintiffs by claiming that the suit schedule properties were not ancestral but were self-acquired by their deceased father. Further case of the Respondent No.1 is that he is the absolute owner of the said properties by virtue of a registered Will dated 18.06.2002 executed by the deceased father in his favour.
7. On the pleadings of the parties, the Trial Court framed five issues. Thereafter the case was adjourned for evidence of the appellants- plaintiffs. Despite several opportunities, the appellants-plaintiffs allegedly led no evidence. Since there was no evidence of the plaintiffs on record, the Respondent no.1- defendant also did not lead any evidence.
8. By order dated 01.12.2006 the Trial Court dismissed the suit filed by the appellants- plaintiffs with costs and accordingly a decree was drawn up.
9. The appellants-plaintiffs challenged the aforesaid judgment and decree by filing an appeal before the District Judge, being Civil Appeal No.12 of 2007. The appellants-plaintiffs also filed an application for condonation of delay of 63 days in filing the appeal by offering an explanation which can be summarized as under:
“That the appellant no. 2 and 3 were married and illiterate. The appellant no.1 was pursuing the case in the court. During the pendency of the case, appellant no.1 fell ill and therefore requested the counsel to intimate to the appellants regarding the position of proceedings. The counsel assured that he will inform the appellants as and when their presence is needed in the court. But the counsel never informed the appellants for giving their evidence in court, which resulted in the dismissal of the case on 1.12.2006. On 26.02.2007, someone from the locality informed the appellants about the dismissal of the case. Thereafter the appellants rushed to the Court and applied for a certified copy of the judgment and then filed the appeal a little belatedly.”
10. By order dated 27.07.2007, as noted above, the District Judge dismissed the application for condonation of delay on the ground that the delay was not bona-fide and no reasonable cause has been made out to condone the delay.
11. The reasoning of the District Judge for reaching the above conclusion was that, (i) the appellants are neither illiterate nor rustic villagers as all of them had signed in English. (ii) During the course of proceedings before the trial court, the appellants were careless and negligent.
12. Against this order the
