- (1.) CM No. 12372-CI of 2013 has been filed under Section 5 of the Limitation Act, for condonation of delay of 10 years and 214 days in late filing of the appeal on the ground that vide notification dated 19.2.1998 issued under Section 4 of the Land Acquisition Act, 1894, land measuring 12 acres 4 marlas situated in village Bir Pipli and Bajidpur, Tehsil Thanesar, District Kurukshetra, was acquired by respondent No.1 for the benefit of respondent No.3 and that out of the said land, the appellants were owners of land measuring 5 kanals 2 marlas situated in revenue estate of village Bajidput and 4 kanals and 4 marlas land situated in revenue estate of village Bir Pipli; that the Land Acquisition Collector announced one award as land of both the villages were adjoining to each other. Land being situated in two villages, two reference applications were filed by the applicants before the Land Acquisition Collector. After passing of the award, the Land Acquisition Collector referred two references i.e. LA case No.26 of 2000 and LA case No. 33 of 2000 and that all the applicants in the instant case were the appellants in LA case No. 26 of 2000. It is further stand of the applicants that learned Reference Court vide its judgment/Award dated 3.9.2002 decided all the petitions by one judgment whereby market value of 4 kanals 4 marlas land was assessed at the rate of Rs.6,60,000/- per acre, whereas for the remaining 97 kanals 10 marlas land situated in village Bir Pipli as well as Bajidpur, the price was assessed at the rate of Rs. 3 lacs per acre and the amount determined by the Land Acquisition Collector pertaining to 97 kanals 10 marlas land was maintained. It is the stand of the applicants that the appellants in LA case No. 26 of 2000 and LA case No. 33 of 2000, wanted to file two appeals against the awards in the respective cases and actually handed over brief to the learned counsel for filing of the appeals in the High Court and although in the brief, certified copy of award of LA case No. 26 of 2000 was available but certified copy of the short order passed in LA case No. 33 of 2000 was not available though appellants in both the reference cases were the same and that counsel for the appellants actually did not notice that that two appeals were to be filed on behalf of the applicants i.e. one against LA case No. 26 of 2000 and the other against award passed in LA case No. 33 of 2000. Resultantly, RFA No. 135 of 2013 was filed against LA case No. 26 of 2000, but no appeal was filed against LA case No. 33 of 2000 as copy of the short order passed in LA case No. 33 of 2000 was not available in the file. Thus due to bona fide belief that only one appeal was to be filed on behalf of the applicants, only one appeal against LA case No. 26 of 2000 was filed. It has also been mentioned in the application that Sh. A.K. Goyal, who was counsel before the reference court, had also informed the applicants that two appeals were to be filed by the applicants as there were two references, which were decided by the reference court, but that although certified copy of short order in LA case No. 26 of 2000 was made available but certified copy of the order in LA case No. 33 of 2000 was not available and it was in the aforementioned circumstances that only one appeal was filed by the applicants. The application further mentions that about 15 appeals were actually filed against the award passed by the reference court and that almost all the claimants had filed appeals before High Court, which came up for hearing on 22.5.2013 and the High Court was pleased to enhance compensation for the entire acquired land including land of the applicants, that after the judgment was announced on 22.5.2013, certified copy of the judgment was received by the applicants on 29.6.2013, whereupon the applicants contacted their counsel in the trial court on 30.6.2013 for filing execution application and it was then learnt that applicants had actually filed appeal against LA case No. 26 of 2000 only and that no appeal had been filed against LA case No. 33 of 2000. It was in the aforementioned circumstances that the applicants contacted their counsel in the High Court on 1.7.2013 i.e. on the first day of the opening of the High Court and on enquiry, it was learnt that no appeal against LA case No. 33 of 2000 had been filed, whereas the applicants were under the bona fide belief that two appeals had been filed against the judgment/award passed by the reference court.
(2.) A categoric averment has been made that applicants had actually handed over all papers to the learned counsel for filing two appeal in the High Court and that while certified copy of order in LA case No. 26 of 2000 was supplied, but certified copy of order in LA No. 33 of 2000 was not supplied to the counsel and it was in those circumstances that only one appeal was filed and filing of appeal in the second land reference escaped notice of the counsel for the applicants, that the non-filing of the second appeal was due to bona fide mistake, that it escaped notice of the counsel that actually two appeals were to be filed as there were two reference petitions and that it was not brought to the notice of the applicants that copy of short order in LA case No. 33 of 2000 was to be attached. Otherwise copy of the short order passed in LA case No. 33 of 2000 would also have been supplied. Certified copy of short order in LA case No. 33 of 2000 was applied for on 2.7.2013 and delivered to the applicants on 3.7.2013, leading to delay of 10 years and 214 days in filing the appeal and that the delay had occurred as the applicants came to know about non-filing of appeal only after decision was rendered by the High Court and if the appeal had been decided earlier, perhaps there would not have been such inordinate delay in filing the appeal, that delay was not at all intentional but had occurred due to the reasons beyond the control of the applicants, that the applicants had neither been negligent nor they were going to gain anything in filing the appeal late.
(3.) Reply has been filed on behalf of respondent No.3 stating therein that the delay of 10 years 214 days in filing the appeal occurred solely on account of awaiting decision of RFA No. 135 of 2003 and the applicants had adopted wait and watch policy to await the outcome of decision in RFA No. 135 of 2003. It has further been mentioned that a story had been concocted by the applicants and that since references of all LAC numbers had been mentioned in the reference award, therefore, it could not be said that by mistake appeal in LA case No. 33 of 2003 could not be filed and decision for not filing the appeal against LA case No. 33 of 2003 was well thought of by the applicants.;