DPS Gullani v. Punjab & Sind Bank

1. At this stage, I must state that one appeal cannot be filed against two orders, one of dismissal of the first appeal by the court below as barred by limitation and the second/subsequent order dismissing the review petition 2014:DHC:1214 against the final order, and therefore I am taking this regular second appeal as being filed against the original order dated 16.9.2013.

2. The first appeal no doubt has been dismissed as barred by limitation and ordinarily this Court would have been inclined to allow condonation of delay and restore the first appeal to be heard on merits, however, the facts of the present case show that this regular second appeal should not be allowed for the reason that the original order of the trial court which is appealed from is dated 25.8.2012 is an order by which the application of the appellantplaintiff under Order 9 Rule 9 CPC was dismissed inasmuch as, it was filed after 12 years of the suit being dismissed in default. The order of the trial court dated 25.8.2012 reads as under:- “ORDER Vide this order I shall dispose off an application under Order 9 rule 9 R/w Section 5 of Limitation Act, 1963, moved on behalf of the applicant.

1. Applicant has stated that the main suit was pending before this court and was fixed for plaintiff’s evidence on 30.5.1996 and thereafter adjourned to 01.11.1996. But on 31.5.1996, the suit was again taken up on an application moved on behalf of defendant and the suit was dismissed in default.

2. Applicant stated that the applicant was working at Punjab and Sind Bank, Hemkunth Branch New Dlehi and was falsely implicated in criminal case and there were total number of seven criminal cases and 18 civil case the impact of which was that the applicant virtually lost its mental capability to fight for survival in this earth and same also caused disturbances into the family life of the applicant to such an extent that the family life of the applicant could not withhold uncalled tragedy and expired on 22.11.1997 and submitted that above said grounds are bona fide one and the applicant is approaching this court with a ray of hope of justice.

3. Further submitted that the applicant has also remained under psychiatric treatment since 2006 for mental depression and he is still under treatment with Safdur Jung Hospital and non-prosecution of this case was neither intentional nor deliberate.

4. Accordingly, prayed for the condonation of delay in moving the present application and consequently prayed for restoration of the suit.

5. Reply to the present application filed on the behalf of the defendant/respondent wherein he submitted that the present application moved in the year 2008 is highly belated and the documents produced with the application do not show any serious ailments which prevented the applicant from moving this court earlier. Few records produced for the period of 2006-2007 do not bring anything to show as to what the nature of illness of plaintiff/applicant which prevented him from approaching the court within reasonable time.

6. I have heard the ld. Counsel for the parties and carefully perused the records.

7. The case was dismissed in default on 31.5.1995 and the present application is moved on 31.10.2008 i.e with delay of around 12 years. The wife of the applicant was expired on 22.11.1997. The documents filed on record related to the psychiatric treatment pertains to the year 2006-2007 which revealed that the applicant was suffering from depression.

8. Though there are ample authorities to the fact that a liberal approach should be adopted by the court while condoning the delay in filing such applications and the delay is not material but the explanation to the same is material.

9. But nothing reveals from the record which could be said to be a sufficient ground for condoning the delay of almost 12 years in moving the present application. Even if applicant was taking psychiatric treatment since 2006 no reasonable explanation is given by the applicant for not moving the proper application between the year 1997 to 2006. Such a long delay could not be condoned unless there are sufficient ground for doing so which are not there in the present case. Filing of certain medical records which also do not reveal serious illness could not give legs to application of applicant. The liberal interpretation of the words ‘sufficient cause’ could not be given to such an extent that may go against the interest of justice.

10. Application being merit less as does not disclose the reasons of delay is hereby dismissed. File be consigned to record room after making necessary compliance.”

3. The order of the first appellate court also shows want of good faith in diligently filing the appeal within limitation, and therefore, I do not find any reason to hold that any substantial question of law arises under Section 100 CPC. In fact, I must note that the appeal would not be a regular second appeal under Section 100 CPC inasmuch as neither the order of the first court is a judgment and decree disposing of the suit and nor is the order passed in appeal therefrom a judgment and decree. Therefore, though the appeal is titled as second appeal, really it is the supervisory jurisdiction of this Court which is invoked either under Section 151 CPC or Article 227 of the Constitution of India.

4. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.

MARCH 05, 2014 VALMIKI J. MEHTA, J. ib