V.K Bali, J. — This order will dispose of Civil Revision Nos. 1948 and 1949 of 1992 as common questions of fact and law are involved in the same. However, the facts have been extracted from Civil Revision No. 1948 of 1992.
2. Petitioner M/s Roy Chaudhary and Company being aggrieved by the ordered passed by Additional District Judge Ambala dated 20.2.1992, vide which application for condoning the delay in filing the appeal as also the appeal being barred by time were dismissed, has approached this Court by way of present revision petition under section 115 of the Code of Civil Revision.
3. Admittedly respondent M/s Krishna Paper Board Mills obtained a decree of Rs. 67,564.04P with costs and future interest at the rate of 6% per annum against the petitioner herein. An application to obtain the certified copies of judgment and decree was filed by the petitioner on the same very date, i.e, 25.4.1989 The copies were ready for delivery on 2.5.1989 having been compared and attested on the aforesaid date but the same were obtained by the petitioner on 14.6.1989 The appeal against the judgment and decree aforesaid was riled before the Additional District Judge Ambala on 17.7.1989 Had the appeal been filed on 2.6.1989, the same would have been within limitation. Thus, the appeal was barred by a period of over 1-1/2 months. It is admitted position that the civil courts were closed from 16.6.1989 to 16.7.1989 but calculating it from the period when the certified copies were ready for delivery, the limitation expired prior to the commencement of the summer vacation. The petitioner obtained certified copies on 14.6.1989 and if the period of limitation is counted from the aforesaid date, then also the limitation expired prior to summer vacations but only two days thereafter.
4. The case of petitioner before the appellate court was that even though enquiries were made from time to time by the counsel engaged by the petitioner as to whether the certified copies were ready or not, it was only on 14.6.1989 that the information was given by the concerned department that the same were ready. Thereafter the copies were despatched to the petitioner at its office at Calcutta by registered post Correspondence took some time before the appeal could be filed. In order to substantive the plea aforesaid, the lawyer concerned appeared in the witness-box and supported the version of the petitioner as made out in the application in which condonation of delay was prayed. The respondent also examined the concerned clerk who deposed that no enquiries were made from her and it was only on 14.6.1989 that the copies were delivered to the person who contacted her. The evidence of concerned clerk was believed by the court below and after holding that no enquiries were made in the matter with regard to preparation of certified copies upto 14.6.1989, the application for condonation of delay as also the appeal were dismissed.
5. After bearing the learned counsel for the parties, I am of the considered view that the first appellate court has erred while holding that there was no sufficient cause made out for condoning the delay. The lawyer concerned did support the version of the petitioner but the evidence of the clerk was believed, on the solitary ground that she was not cross-examined. It was clamour of the petitioner before the court below that no cross-examination could be adverted to the witness aforesaid as there was strike of lawyers when her evidence was recorded. Be that as it may, the evidence of counsel for the petitioner was a positive kind of evidence and in the very nature of things, it could not be expected that the clerk concerned would remember in each and every case as to whether the enquiries regarding the preparation of certified copies were made or not The court, rather, took a narrow view in the matter and, thus, scuttled decision of appeal on merits. It has been held by the apex court that unless it is shown that the party asking for condonation of delay was to gain something by delaying the matter, the delay should normally be condoned. The appeal, in the present case, was filed after about one month and half and immediately after the summer vacations. In the totality of circumstances that are available in this case, the delay should have been condoned by the first appellate court.
6. The impugned order is, thus set aside and the revision petitions are allowed. Since it is a money decree and was passed in favour of respondent therein, about 3-1/2 years ago, it would be just and proper for the appellate court to insist upon payment of decretal amount to the respondent subject, however, to its giving undertaking that on reversal of the judgment passed by it, the amount will be returned within some stipulated period before granting any stay to the petitioner. The appellate court would, thus, decide the controversy on merits. There shall, however, be no orders as to costs. The parties, through their counsel, are directed to appear before Additional District Judge Ambala on 17th December, 1992.