Condonation of Delay--Limitation cannot be condoned on the ground of compassion or equitable considerations or where the party seeking condonation appears to be callous or negligent.

Permod Kohli, J.

1. Reply to the application for condonation of delay has been filed today in Court. The same is taken on record. Copy of the reply has also been supplied to the counsel opposite.

2. Heard the learned Counsel for the parties at length.

3. Through the medium of this application, delay of 753 days in refiling the appeal is sought to be condoned.

4. The grounds for condonation of delay in refiling the appeal are indicated in paragraphs 2 and 3 of the application, which are reproduced hereunder:

2. That the Registry raised objections and after complying with the objections the appellant filed the appeal on 24.02.2003 and again objections raised and refiled on 03.07.2003, 21.02.2004 and lastly on 21.09.2004 after removing the objections and thereafter it was found that it has caused delay of 753 days in refiling the same beyond 40 days.

3. That this delay of 753 days in refiling has been caused as the Clerk of the counsel misplaced the same and has now left the service with the counsel and the appeal has been filed now on finding the same. Thus, the delay is neither wilful or international but due to the reasons mentioned above beyond control.

5. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court Clause 5 (hereinafter referred to as "the Rules") deals with the limitation for filing the appeal which reads as under:

5. Amendment- (1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, a 40 days in the aggregate, to be fixed by him any amendment of appeal for the reasons specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under Sub-rule (1) it shall be listed for orders before the Court.

6. In view of the aforesaid rule, the returned appeal after removal/rectification of the objections, is required to be re-filed within 10 days. However, the period can be again extended after the expiry of 10 days for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate.

7. In the present case, after the receipt of the appeal from Registry lastly on 21.09.2004 it was refiled in the Registry finally on 04.07.2006. The applicant in paragraph 2 of the application has misrepresented the facts by saying that the appeal was lastly refiled on 21.9.2004. This statement is totally false and contrary to the record. The record shows that the appeal was refiled lastly on 04.07.2006 and not on 21.09.2004. No sufficient reasons have been given for explaining the delay in refiling the appeal. Rather the applicant-appellant has tried to mislead the Court by mentioning wrong dates. This mis-statement itself, is sufficient to refuse judicial discretion in favour of the applicant-appellant. Even otherwise, the ground for condonation of delay is contained in paragraph 3 of the application wherein it is stated that the brief was misplaced by the Clerk of the counsel who has now left the service and on finding the file, the same has been filed now. Ever otherwise, no details are given as to when the Clerk of the counsel has misplaced the file, when he had left the service of the counsel for the applicant-appellant and when the file has been found.

8. Learned Counsel appearing for the applicant-appellant has stated that it was due to the fault of the Clerk that delay has been caused.

9. I am not impressed by this argument. It is the duty of the party also to follow his/her case. It cannot be believed that the applicant-appellant has not bothered to enquire about his case for a period of more than four years. If he has not taken any interest, it is sheer negligence on the part of the applicant-appellant. In the absence of there being any details about the misplacing of the file and finding the same, when the Clerk of the counsel left the service and when the new Clerk/counsel found the file, the grounds urged in paragraph 3 of the CM. Appli