High Court of Punjab and Haryana, Chandigarh
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M/S JAIN STEEL INDUSTRIES & Ors v. SMT.SAVITA GOYAL - CR-1097-2004  RD-P&H 301 (20 December 2005)
CIVIL REVISION NO. 1097 of 2004
DATE OF DECISION: JANUARY 06, 2006
M/S JAIN STEEL INDUSTRIES AND OTHERS .........PETITIONERS VERSUS
SMT.SAVITA GOYAL ..........RESPONDENT
COARM: HON'BLE MR.JUSTICE HEMANT GUPTA.
PRESENT:- Shri S.N.Chopra, Advocate, for the petitioners.
Shri Arun Palli, Advocate for the respondent.
HEMANT GUPTA, J.
The defendants are in revision petition aggrieved against the order passed by the learned first Appellate Court on 2.6.2003 whereby their application for condonation of delay of 268 days in filing the appeal before the learned first Appellate Court was dismissed.
A suit for recovery of Rs. 4,92,000/- was decreed by the learned trial Court on 28.11.2000. An appeal was filed on 27.08.2001 along with an application under section 5 of the Limitation Act, 1963, for condonation of delay of 268 days in filing the appeal. It is the case of the CIVIL REVISION NO. 1097 of 2004 
petitioners that due to the fault of their counsel, they were not aware of the disposal of the case and came to now only when the decree holder sought execution of the decree.
The said application has been dismissed by the learned first Appellate Court on the ground that there was a criminal litigation pending against the appellants in which they were regularly appearing and, therefore, a presumption was drawn that they were fully aware of this case as well. Consequently, the Court found that there do not exist any sufficient cause for condonation of delay.
Learned counsel for the respondent has produced copies of the orders passed in the complaint pending inter se parties and in some other case where the petitioners were putting in appearance through the same counsel, who was their counsel before the learned trial Court. On the basis of this, an inference was sought to be raised that it is impossible to imagine that the petitioners continue to appear through a lawyer even though a decree has been passed against them and they were not made aware of it.
In fact, I am of the opinion that the orders would show that even though they were appearing before the Court through the same counsel, but they were not made aware of the present proceedings which alone would make them aware of their right to file an appeal. In view of the decision of the Hon'ble Supreme Court reported as N. Balakrishnan vs.
CIVIL REVISION NO. 1097 of 2004 
M. Krishnamurthy, 1999 (1) Civil Court Cases, 12 (SC), it is to be examined whether the petitioners were trying to take the benefit of their own wrong. I am of the opinion that the conduct of the petitioners is not such which would compel the Court to raise such a presumption.
In view of the above, the present revision petition is allowed and delay of 268 days in filing of appeal is condoned while setting aside the order passed by the learned District Judge on 02.06.2003. Since, admittedly, the delay in filing of appeal before the learned first Appellate Court could be avoided by the petitioners had they exercised due diligence, the delay is condoned on payment of Rs.5000/- as costs. The costs shall be deposited on the date on which the parties shall appear before the learned first Appellate Court.
The learned first Appellate Court is directed to decide the appeal expeditiously on merits in accordance with law.
JANUARY 06, 2006 ( HEMANT GUPTA )
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