- (1.) The petitioner has sought to set aside the order dated 8.11.2012 (Annexure P/5), passed by the first appellate court. The petitioner-plaintiff had filed a suit before the trial court on 18.7.1998, which was dismissed on 25.4.2006, against which the appeal was preferred. The petitioner had also moved an application for condoning the delay of three years, six months and ten days in filing the appeal, on the ground that he was an employee and posted at Chandigarh, therefore, he could not go to Fatehabad in order to enquire about the decision of the case. It was further pleaded that his brothers Kishori Lal and Siri Chand were conducting the proceedings of the case and had taken the responsibility and to make expenses of litigation. They joined hands with the respondents and did not inform him about the decision of the case, about which he came to know only on 12.10.2009 when he contacted his counsel Mr. C.L. Narang, Advocate, Fatehabad.
(2.) The first appellate court dismissed the application on 8.11.2012.
(3.) Having heard the learned counsel for the petitioner at length, I do not find any merits in the contentions that the delay was not intentional and Kishori Lal and Siri Chand were bound to inform him about the decision of the case. There were two other plaintiffs besides him. He does not dispute that his two brothers (plaintiffs); Kishori Lal and Siri Chand knew well about the decision of the case as there was no clash of interest amongst them, therefore, it does not sound to the reason that they did not inform him for such a long time. Any way, the petitioner being party interested, he should have taken special interest to know about the fate of the case and could contact his counsel for the purpose. No sane man would remain silent for such a long time and finally enquire after more than three years. Condoning of such delay would amount to high jacking the statutory provisions of the Act as a whole. As regards the judgment referred by the learned counsel, delivered in case State (NCT of Delhi) v. Ahmed Jaan, 2008 4 RCR(Civ) 126, the same is not applicable to the facts of the present case, as in that case, the delay was condoned because there was negligence on the part of the counsel who had mislead the party and the explanation was plausible. The learned counsel for the petitioner has further relied upon the judgment delivered by the Apex Court in case Improvement Trust, Ludhiana v. Ujagar Singh and others, 2010 3 CivCC 374, wherein it was observed as under:- Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No. 5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No. 5 and cannot subscribe to the same.;