POONAM & OTHERS v. HARISH KUMAR AND ANOTHER

The Judgment of the Court was delivered by

GANGULY, J. 1. Leave granted.

2Copy pinpoint2. This civil appeal is directed against the 01.:ler dated H

POONAM & ORS. v. HARISH KUMAR AND ANR. 295 [ASOK KUMAR GANGULY, J.] 01.12.2008 of the High Court of Punjab and Haryana at A Chandigarh in Civil Revision No.3745/2008, whereby the High Court declined to interfere with the order dated 27.07.2007 of the District Judge, Ambala. By order dated 27.07.2007 the District Judge dismissed the application for condonation of delay of 63 days in filing the appeal against the judgment of 8 the trial court in Civil Suit No. 23/2003.

3Copy pinpoint3. The facts and circumstances, which are relevant to this appeal, are as under.

4Copy pinpoint4. All the appellants no. 1 to 3 are sisters of Respondent C no. 1, who is their brother. The father of the parties died on 17.01.2003 and the mother had predeceased the father. Eight daughters and one son survived their father. The father during his lifetime arranged the marriage of six daughters except the appellant no. 1 & 2 herein. D

5Copy pinpoint5. In the year 2003, the appellants brought a suit (CS no. 23 of 2003) before the Civil Judge, Ambala City for declaration of their title as 3/9th owner each, of the suit scheduled properties and for permanent injunction restraining the •Respondent no.1 from interfering with their peaceful possession and creating any third party rights in the said properties. According to the appellants- plaintiffs, the suit schedule properties were their ancestral property in which plaintiffs have got right by birth and all of them have got equal shares in the same. F

6Copy pinpoint6. The Respondent no. 1 controverted the aforesaid averrnent of the appellants-plaintiffs by claiming that the suit schedule properties were not ancestral but were self-acquired by their deceased father. Further case of the Respondent No.1 G is that he is the absolute owner of the said properties by virtue of a registered Will dated 18.06.2002 executed by the deceased father in his favour.

7Copy pinpoint7. On the pleadings of the parties, the Trial Court framed H

296 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.

A five issues. Thereafter the case was adjourned for evidence of the appellants- plaintiffs. Despite several opportunities, the appellants-plaintiffs allegedly led no evidence. Since there was no evidence of the plaintiffs on record, the Respondent no.1defendant also did not lead any evidence.

8Copy pinpoint8. By order dated 01.12.2006 the Trial Court dismissed the suit filed by the appellants-plaintiffs with costs and accordingly a decree was drawn up.

9Copy pinpoint9. The appellants-plaintiffs challenged the aforesaid C judgment and decree by filing an appeal before the District Judge, being Civil Appeal No.12 of 2007. The appellants- plaintiffs also filed an application for condonation of delay of 63 days in filing the appeal by offering an explanation which can be summarized as under: D "That the appellant no. 2 and 3 were married and illiterate. The appellantno.1 was pursuing the case in the court.During the pendency of the case, appellantno.1 fell ill and therefore requested thecounsel to intimate to the appellantsregarding the position of proceedings. The E counsel assured that he will inform the appellants as and when their presence is needed in the court. But the counsel never informed the appellants for giving their evidence in court, which resulted in the dismissal of the case on 1.12.2006. On 26.02.2007, someone from the F locality informed the appellants about the dismissal of the case. Thereafter the appellants rushed to the Court and applied for a certified copy of the judgment and then filed the appeal a little belatedly.•

10Copy pinpoint10. By order dated 27.07.2007, as noted above, the District Judge dismissed the application for condonation of delay on the ground that the delay was not bona-tide and no reasonable cause has been made out to condone the delay.

11Copy pinpoint11. The reasoning of the District Judge for reaching the H

POONAM & ORS. v. HARISH KUMAR AND ANR. 297 [ASOK KUMAR GANGULY,.J.] above conclusion was that, (i) the appellants are neither illiterate A nor rustic villagers as all of them had signed ill English. (ii) .During the course of proceedings before the trial court, the appellants were careless and negligent.

12Copy pinpoint12. Against this order the appellants preferred a revision before the High Court. 8

13Copy pinpoint13. By impugned order dated 01.12.2008 the High Court dismissed the revision petition upholding the order of the District Judge. The High Court expressed the view that the delay of 63 days in filing the appeal has not been properly explained. C

14Copy pinpoint14. We cannot accept the view taken by the High Court in the impugned judgment. When a Court exercises its discretion in ejther condoning or refusing to condone delay in filing any proceeding, the Court acts in exercise. of its discretion. D Normally, this Court in exercise of its discretion under Article 136 of the Constitution may not interfere with the exercise of discretion by the High Court in such ·matters. However, there is no straitjacket about this. The discretion of this Court under Article 136 of the Constitution is meant to further the ends of justice and this Court has been using its discretion in E appropriate cases when it is satisfied that exercise of jurisdiction by the High Court or other Tribunals has not been on sound judicial principles. It is well settled that judicial discretion shall.always be exercised "according to the rules of reason and justice and not according to private opinion" [See F Sharpe Vs. Wakefield (1891 AC 193)].

15Copy pinpoint15. In the facts of this case it is clear that of all the three ladies, who were the appellants, one of them was pursuing the case and she fell sick. Therefore, she was not in a position to G pursue the legal remedy with due diligence as a result of which the appeal was .filed with a delay of 63 days. The delay of 63 days is not a delay for a long period and there has been some explanation for the delay. The High Court should have, before passing the impugned judgment, considered the explanation for H

298 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.

A the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay. The High COJ.Jrt should also have considered that it has been settled by a catena of cases that, unless the delay is gross, --an explanation for the same should be liberally construed. It 8 appears that the High Court has not been able to consider all these relevant facts in their correct perspective before passing the impugned order.

16Copy pinpoint16. We, therefore, are constrained to set aside the order of the High Court and condone the delay. We direct that the C appeal should be restored to its file and the hearing of the appeal may proceed as expeditiously as possible.

17Copy pinpoint17. However, nothing said in this judgment should be considered as expression of opinion on the merits of the o controversy between the parties. The appeal is allowed. There will be no .order as to costs. 8.8.8. Appeal allowed.