IMPORTANT POINT
Limitation--Appeal--Re-filing of--Maximum period of limitation under High Court Rules 40 days.

Permod Kohli, J.:-CM NO.4247-C/2006

This is an application seeking condonation of delay of 616 days in re-filing this Regular Second Appeal. It is stated that the appeal was filed in the Registry on 16.5.2005 well within limitation and thereafter Registry returned the appeal with certain objections. The counsel for the appellant tried to contact the appellant to complete the instructions, but his efforts proved futile. It is further stated that the appellant has come to the office of the counsel on the date of filing of this application which is indicated as 15.10.2006 in the affidavit, accompanying the application. In paragraphs 5 and 6 of the application, the ground for condoning the delay in re-filing the appeal has been mentioned. It is stated that brother-in-law of the applicant/appellant, namely, Ajmer Singh son of Chanan Singh, aged 45 years was taken seriously ill with Cancer. On 11.6.2005, he was taken to Kaswan Hospital and Diagnostic Center at Bikaner and thereafter he remained under treatment at the Punjab Health System Corporation from 11.8.2005 to 17.8.2005. He was shifted to Malwa Super Speciality Hospital, Bathinda on 27.8.2005 and then shifted to Bansal Surgical and Maternity Hospital, Bathinda on 30.9.2005. He did not recover from the ailment and ultimately died on 21.1.2006. It is accordingly mentioned that the applicant/appellant remained under stress and strain and could not refile the appeal within the prescribed time.

2. The application is opposed by the other side wherein it is stated that after the dismissal of the appeal by the First Appellate Court, the appellant was issued notice in Execution Application. It was only thereafter that he preferred the present appeal. It is mentioned that death of the brother-in-law of the applicant/appellant occurred on 21.1.2006 and the present appeal has been preferred after a period of one year, without explaining the delay.

3. I have heard the learned counsel for the parties. Vide interlocutory order dated 27.9.2007, Registry was directed to give details as to how many Objections were raised regarding filing and when objections/defects were removed by the appellant/applicant. Pursuant to the aforesaid directions, Registry has filed a detailed report on 4.10.2007 wherein the detail is mentioned as under:-

“RSA was filed on 16.5.2005. It was returned to the counsel on 27.5.2005 with the following objections:

“Paper book should be page-marked. Fair typed copy of judgment should be filed.”

The appeal was re-filed on 17.10.2006 after compliance.

On 18.10.2006, Registry again returned the appeal with the following objections:-

“Refiling application should be signed by the Ld. Counsel. Objection dated 27.5.2005 still not complied with. How the Court Fee assessed and affixed, please give detail?”

This time the appeal was re-filed on 23.12.2006. Appeal was again returned on 27.1.2007 as the appeal was re-filed without complying the objections earlier raised. Appeal was again re-filed on 23.2.2007. Again appeal was returned to the counsel on 22.3.2007 with the following objections:­

“Learned counsel is requested to visit personally regarding opening sheet and Law point.”

Appeal was re-filed on 16.4.2007 vide Diary No.08549.”

Period of limitation has been prescribed under Rule 5 of the Rules and Orders of Punjab and Haryana High Court, Volume V Chapter I, Part A which deals with Judicial business. This Chapter deals with “the Presentation and Reception of Appeals, Petitions and Applications for Review and Revision”. Rule 5 deals with the re­ filing of the appeals and 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, and 40 days in the aggregate, to be fixed by him any memorandum of appeal for the reason 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 l