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2016 Supreme(HP) 115
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
P.S.Rana, J.
Ramesh Hans son of Sh. Milkhi Ram -Revisionist
Vs.
Km.Sudha Hans D/o Late Sh Ranjeet Singh & others - Non-revisionists
Civil Revision No. 8 of 2015
Decided On : 2.3.2016
For the revisionist:Mr. Pradeep K. Gupta, Advocate.
For Non-revisionist 1 to 4Mr.Pratima Malhotra, Advocate.
For Non-revisionist-6 Mr. Naveen K.Dass, Advocate.
The court emphasized the importance of condoning delay to ensure that a cause would be decided on merits after hearing the parties, and that substantial justice deserves to be preferred over technical considerations.
Headnote:
Limitation Act - Condonation of Delay - Section 5
Fact of the Case:
The plaintiff filed a suit for declaration and injunction. The trial court ruled in favor of the plaintiff. The defendant filed an appeal and an application under Section 5 of the Limitation Act for condonation of delay, which was dismissed. The revision petition was filed against the dismissal of the application.
Finding of the Court:
The court found that the delay in filing the appeal was due to the illness of the advocate representing the revisionist.
Issues: The main issue was whether the delay in filing the appeal should be condoned.
Ratio Decidendi: The court relied on Section 5 of the Limitation Act and the principle that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.
Final Decision: The revision petition was allowed, the order of the lower court was set aside, and the delay was condoned. The court imposed costs on the revisionist and directed expeditious disposal of the appeal.
P.S.Rana, J.
1. Present revision petition is filed under Section 115 of the Code of Civil Procedure against the order Whether reporters of the Local papers are allowed to see the judgment? yes. dated 23.12.2014 passed by learned Addl. District Judge Bilaspur whereby learned Addl. District Judge Bilaspur dismissed petition filed under Section 5 of Limitation Act for condonation of delay of 47 days.
BRIEF FACTS OF THE CASE:
2. Km.Sudha Hans daughter of late Sh Ranjeet Singh plaintiff filed suit for declaration to the effect that plaintiff be declared joint owner in possession of land to the extent of 1/8th shares in the land and house situated in khata/khatanuni No.6 Min/296 khasra No. 1222, 1227 Plot No. 148 measuring 164.98 Sq.metre situated in up mohal Diara Tehsil Sadar District Bilaspur HP. Plaintiff sought additional relief of injunction against the defendants restraining defendants from dispossessing the plaintiff or causing any interference with the possession of plaintiff from two rooms, kitchen, bath room and latrine. Defendants
contested the suit before learned trial Court. As per pleadings of parties following issues framed by learned trial Court on 16.8.2010.
1. Whether plaintiff is joint owner in possession of 1/8th share in the suit property as alleged? …OPP.
2.Whehter plaintiff is entitled for relief of permanent injunction as prayed for? …OPP
3. Whether plaintiff has no cause of action to file present suit? …OPD.
4.Whether suit of plaintiff is not maintainable? …OPD
5. Whether plaintiff has no locus standi to file present suit? …OPD.
6.Whether suit of plaintiff is barred by limitation? …OPD.
7. Whether plaintiff is estopped by her act and conduct to file present suit?. …OPD.
8 Relief.
3. Learned trial Court decided issues No. 1 and 2 in affirmative. Learned trial Court decided issues No. 3,4,5, 6 and 7 in negative. Learned trial Court passed decree to the effect that plaintiff is joint owner in possession of suit land to the extent of 1/8th shares in plot-house No. 148 situated over land comprised in khata/khatauni No.6 min 296 khasra Nos. 1222, 1227 measuring 164.98 Sq. yards situated in up mohal Diara Tehsil Sadar District Bilaspur HP. Learned trial Court restrained defendants No. 1 to 3 and 7 permanently from causing any interference and dispossessing plaintiff from one room, kitchen, bathroom and latrine situated over suit land.
4. Feeling aggrieved against the judgment and decree passed by learned trial Court revisionist filed appeal before learned District Judge and also filed application under Section 5 of Limitation Act for condonation of delay of 47 days. Learned first appellate Court on dated 19.10.2013 framed following issues upon application filed under Section
5 of Limitation Act.
1. Whether there are sufficient grounds to condone delay in filing appeal as alleged?. ..OPP.
2. Whether appellant has not come to Court with clean hands?. ..OPR.
3. Relief.
5. Learned first appellate Court decided issues No. 1 and 2 in negative and dismissed the application filed under Section 5 of Limitation Act.
6. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionists and also perused entire record carefully.
7. Following points arise for determination in present revision petition:
1. Whether revision petition filed by revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition?.
2. Relief.
8. Finding on point No.1 with reasons:
8.1 AW1 Ramesh Chand has stated that civil suit was filed before learned trial Court and he engaged Advocate namely Sh Daya Sagar Bhardwaj. He has stated that he used to attend court proceedings occasionally. He has stated that his Advocate told him that he should not attend court proceedings regularly. He has stated that his Advocate told him that he would call him when he would be required in court proceedings. He has stated that his Advocate was patient of sugar, blood pressure and cancer. He has stated
