IMPORTANT POINT
Condonation of delay—Once sufficient cause is shown, the length of period of delay is irrelevant.

Permod Kohli, J:- Delay of 635 days in filing this Regular Second Appeal, is sought to be condoned through medium of this application filed on behalf of the defendants/applicants. The admitted factual position relevant for purposes of the present application is noticed below:-

2. Respondent No.1. herein filed a Civil Suit No. 85 of 2002, against the applicants and respondent Nos. 2 to 5 in the Court of Addl. Civil Judge (Senior Division), Gohana, claiming declaration with consequential relief of permanent injunction. The defendants were proceeded ex-parte in the trial Court and consequently, the suit came to be decided vide judgment and decree dated September 25,2004. The trial Court,however, dismissed the suit of the plaintiff. The circumstances where-under the applicants and respondent Nos.2 to 5 herein (defendants in the suit), were proceeded ex-parte are not evident from the judgment of the trial Court. The trial Court simply made following observations in para 3 thereof:-

“Defendants were proceeded ex-parte after they failed to put up appearance in the Court”.

3. The plaintiff/respondent No.1 herein, preferred an appeal being Civil appeal No. 138 of 2004, in the Court of Addl. District Judge, Sonepat against the ex-parte judgment and decree (dismissal of suit). The first Appellate Court also proceeded ex-parte against the respondent Nos. 1 to 4 and 9 in the appeal before it (defendants in the suit), who are the applicants herein this application. The lower Appellate Court,however, noticed the circumstances where under the trial Court had proceeded exparte against the defendants, the applicants/appellants herein. It has been mentioned that the registered letters sent to defendant Nos. 1,2,3 and 5, 6 & 9 were received back with the report of “refusal” and they were proceeded ex-parte vide order dated August 14,2002. It is further noticed that the service on defendant Nos.4, 7 and 8 has been effected through munadi and they were proceeded ex-parte vide order dated January 31,2004. The lower Appellate Court after recording these observations proceeded to decide the appeal and allowed the same vide its judgment and decree dated March 02,2005, whereby the judgment and decree of the lower Court was set aside and the suit filed by respondents decreed.

4. The applicants who were respondent Nos.9 and 1 to 4 before the lower Appellate Court have preferred the present appeal along-with an application for condoning the period of delay, whereas respondent Nos. 5 to 8 have been arrayed as pro-forma respondent Nos. 2 to 5 herein.

5. In the judgment impugned, there is no mention whether the respondents were served or not. The applicants have quoted interlocutory order dated October 21,2004, passed by the lower Appellate Court, which reads as under:-

“Appeal received by assignment. It be checked. Heard. There are many arguable points so, the same is admitted. It be registered. But at this stage appellant counsel has pointed out that defendants were already proceeded ex-parte before the lower court, so their service is not required to be effected in appeal. As such, the learned lower Court record be summoned for December 02,2004”

6. From the above interlocutory order, it is apparent that the Appellate Court never put the respondents to notice in the appeal before it and proceeded to decide the appeal. The applicants have,accordingly, sought condonation of delay under the above circumstances. They have also taken an additional plea that the addresses given by the plaintiffs in the suit/appeal are incorrect. It is stated that the applicants were never resided at the addresses given and thus, there was no question of their refusal. Summons were never sought to be served upon them and the plaintiffs have defrauded not only the applicants but also the Hon’ble Court. In the memo of appeal, it is specifically mentioned that appellant No.1 Roshan Lal, his wife Smt. Veena-appellant No.2 and appellant No.3- Smt. Pushpa, reside at A-96, Vishal