- (1.) Challenge in the present petition is to the order dated 9.12.2011, passed by Additional District Judge, Ludhiana, whereby in an application filed by the respondent-Ludhiana Improvement Trust (for short, 'the Trust') along with appeal seeking condonation of delay in filing the appeal, the delay was condoned.
(2.) The facts of the case, in brief, were noticed by this court in order dated 14.2.2012, are extracted below: "4. XXX XXX XXX It is a case in which a civil suit was filed by the petitioner for mandatory injunction directing the Ludhiana Improvement Trust, Ludhiana to make regular allotment of residential plot measuring 500 sq. yards in 475 Acre Scheme in the name of the petitioner out of Government's discretionary quota at reserve price, prevailing at the time of approval. The alleged approval is dated 6.10.1983. The suit was filed on 22.4.2002. As is evident from the interim order passed by the learned trial court on July 20,2002, memo of appearance was filed on behalf of Ludhiana Improvement Trust. However, thereafter, none appeared for it and it was proceeded against ex parte. Learned court below decided the suit in favour of the petitioner on 18.12.2008 without even considering issue of limitation. Ludhiana Improvement Trust filed appeal before the lower appellate court on 17.7.2009 along with application for condonation of delay claiming that they were not aware about the pendency of the suit and ex parte decree. They came to know only when notice of the execution was received. The application for condonation of delay having been accepted, the petitioner/plaintiff is before this court." 5. To complete the sequence, the following facts would also be relevant: After the notice in the suit was issued, on 20.7.2002, it is noticed by the court that memo of appearance on behalf of the defendant has been filed. The case was adjourned to 27.8.2002 for filing of the written statement and power of attorney. Though the name of the Advocate is not mentioned in the order dated 20.7.2002, however, at page 55 of the record of the court below, memo of appearance is available on record which has apparently been filed by Shri S. S. Gill, Advocate, as it does not contain his name but his signatures only. 6. On 27.8.2002, since no one had appeared for the Trust in the court till 4.00 PM, ex-parte proceedings were directed. Thereafter, ex-parte evidence of the plaintiff was recorded. On 14.2.2003, the court recorded that an application for setting aside of ex-parte proceedings was filed. After getting reply to the application from the plaintiff, issues were framed on that application on 10.4.2003. For number of dates of hearing, no evidence was led in support of the application. 7. On 7.12.2004, the trial court passed the following order dismissing the application for setting aside of ex-parte proceedings: "Case called several times. It is 3.28 P.M. None has appeared on behalf of the applicants/defendants. So the application for setting aside the exparte order dated 27.8.2002 stands dismissed in default. For exparte evidence of the plaintiff, now to come up on 25.2.2005." 8. Thereafter the case again proceeded for recording of the ex-parte evidence of the plaintiff and remained pending as such for number of dates of hearing. 9. On 9.5.2006, the court recorded that an application for restoration of the application for setting aside of ex-parte order was filed. Vide detailed order dated 27.10.2006, the application filed by the Trust for restoration of the application for setting aside of exparte order was dismissed. Subsequent thereto, after the plaintiff tendered his ex-parte evidence, vide judgment dated 18.12.2008, the suit was decreed. There is nothing on record before the court below to show as to whether order dated 27.10.2006 dismissing the application for restoration of the application filed for setting aside of ex-parte proceedings was challenged by the Trust any further. The Trust was represented by Shri Rajiv Kaushal, Advocate in the aforesaid proceedings. 10. Appeal against the judgment and decree of the trial court dated 18.12.2008 was filed before the District Judge on 16.7.2009. There is objection noticed by the Clerk of Court mentioning that the appeal is beyond limitation. An application seeking condonation of delay in filing the appeal was also filed without mentioning the number of days, condonation of which was sought. The application is supported by an affidavit of Mr. G. S. Sodhi, Executive Officer of Ludhiana Improvement Trust dated 14.7.2009 attested on 15.7.2009. 11. It is claimed in para No. 2 of the application seeking condonation of delay in filing the appeal that after the ex-parte decree was passed against the Trust on 18.12.2008, execution was filed by the decree holder. Legal Advisor of the Trust appeared on 25.3.2009 and filed memo of appearance. The case was adjourned for filing objections to 2.5.2009. However, the objections could not be filed as copy of the execution application was not supplied. It was again adjourned to 13.6.2009. Before the next date of hearing, on 1.6.2009 copy of the execution application was supplied to the counsel for the Trust. It is specifically pleaded in the application that prior to that, the Trust was not aware about the pendency of the suit and exparte proceedings directed against it. It was thereafter that the appeal along with application for condonation of delay against the ex-parte judgment and decree of the trial court was filed. 12. A perusal of the application for setting aside of ex-parte order dated 27.8.2002 filed in the trial court shows that the same has been signed by some officer/official on behalf of the Trust, without mentioning his name. The application is dated 14.12.2002. It has been signed by Shri S. S. Gill, Advocate. Subsequent thereto, when the application for restoration of the application for setting aside of exparte order was filed in the court on 11.3.2006 under the signatures of Mr. Rajiv Kaushal, Advocate, the same was accompanied by an affidavit of Mr. D. C. Garg, Executive Officer, Ludhiana Improvement Trust. There is power of attorney executed in favour of Mr. S. S. Gill, Advocate, at page 53 of the record. It only contains signatures of some officer/official without mentioning his name. 13. A perusal of the aforesaid two applications and the affidavits filed before the trial court shows that proceedings in the suit were apparently in the knowledge of the Trust, still false affidavit was filed before the learned District Judge in support of the application seeking condonation of delay."
(3.) Learned counsel for the petitioner submitted that in view of the observation made by this court in paragraph No. 13 of the order dated 14.2.2012, the delay in filing the appeal did not deserve to be condoned. Once the proceedings in the trial court were in knowledge of the officers/officials of the Trust, merely by filing a false affidavit that they came to know about the proceedings only when notice in execution was received, in fact, the Trust deserved to be penalised instead of giving the benefit of condonation of delay in filing the appeal. The cause shown by it was not sufficient. There is no finding recorded by the court below to that effect. In the absence thereof, the impugned order suffers from material illegality and deserved to be set aside. In support of the submissions, reliance was placed upon Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medium Project and another, 2008 4 RCR(Civ) 885.;