2025:HHC:17724 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 138 of 2024 Reserved on 28.05.2025 Decided on :04.06.2025 Ramesh Kumar and others …Appellants Versus Shakuntla Devi & others …Respondents. Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Romesh Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate. For respondent No.1: Mr. Ajay Chandel, Advocate. Satyen Vaidya, Judge This Regular Second Appeal has been filed against judgment dated 11.02.2022, passed by learned Additional District Judge, Hamirpur in Civil Miscellaneous Application No.104 of 2016, whereby the application of the appellants under Order 41 Rule 3-A of the Code of Civil Procedure read with Section 5 of the Limitation Act has been dismissed. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:17724 2. Brief facts necessary for adjudication of appeal are that the suit bearing No. 195 of 1986 was filed by the appellants/plaintiffs against the respondents/defendants before the learned Civil Judge (Senior Division) Court No.1, Hamirpur for declaration that the appellants/plaintiffs were exclusive owners in possession of the suit land on the basis of Will dated 20.4.1982 executed by Sh. Santa @ Sant Ram. The respondents/defendants contested the suit and also filed a Counter Claim No. 37 of 2009 claiming a share in the suit land. 3. Learned Civil Judge (Senior Division) Court No.1, Hamirpur dismissed the Civil Suit No.195 of 1986 and decreed Counter Claim No. 37 of 2009 vide judgment and decree dated 30.03.2010. 4. The appellants/plaintiffs filed Civil Appeal No. 59 of 2010 before the learned District Judge, Hamirpur against the judgment and decree passed by the learned trial Court dismissing the suit of appellants/plaintiffs. No appeal was filed against the decree passed in Counter Claim No. 37 of 2009. Learned District Judge, Hamirpur 3 2025:HHC:17724 dismissed the Civil Appeal No.59 of 2010 vide Judgment and decree dated 03.09.2013 and one of the grounds of dismissal was that the appellants/plaintiffs had not assailed the judgment and decree passed in Counter Claim No. 37 of 2009. 5. Appellants/plaintiffs then filed Regular Second Appeal No. 512 of 2014 before this Court against judgment and decree dated 03.09.2013, passed by the learned District Judge, Hamirpur in Civil Appeal No. 59 of 2010. The Regular Second Appeal of the appellants/plaintiffs was also dismissed on 25.03.2015. Thereafter the appellants/plaintiffs filed Review Petition No.118 of 2015 before this Court seeking review of judgment dated 25.03.2015 in RSA No. 512 of 2014. The Review Petition was also dismissed on 05.10.2015. 6. Lastly, appellants/plaintiffs filed Special Leave to Appeal (C) No. 3945 of 2016 before the Hon’ble Supreme Court, which came to be withdrawn by the appellants/plaintiffs on 08.03.2016. The Hon’ble Supreme court had passed the following order: 4 2025:HHC:17724 “The learned counsel for the petitioners seeks permission to withdraw the special leave petitions without prejudice to the liberty of the petitioners to pursue their grievances in appropriate proceedings. Permission is granted with the above liberty. Accordingly, the special leave petitions are dismissed as withdrawn.” 7. Thereafter, the appellants/plaintiffs filed an appeal against the judgment and decree passed by the learned trial Court in Counter Claim No.37 of 2009 before the learned District Judge, Hamirpur. Alongwith the appeal the appellants/plaintiffs also filed an application under Order 41 Rule 3-A of the Code read with Section 5 of the Limitation Act for condonation of delay as the appeal was filed after prescribed period of limitation. The said application of the plaintiffs/appellants has been dismissed vide impugned judgment, hence this appeal. 8. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 9. According to the appellants/plaintiffs the omission in not filing appeal against decree in Counter Claim No. 37 of 2009 was result of wrong impression 5 2025:HHC:17724 gathered by the appellants/plaintiffs. It was alleged in the application for condonation of delay that learned trial Court had passed a common judgment and there was no mention about preparation of separate decree sheets. As per appellants/plaintiffs, they came to know about preparation of separate decree sheets only when RSA No.138 of 2024 was filed in this Court. Further, the appellants/plaintiffs also sought the benefit of liberty granted to them by Hon’ble Supreme Court vide order dated 08.03.2016 passed in Special Leave to Appeal (C) No. 3945 of 2016. 10. The respondents/defendants contested the averments made in the application. 11. Learned Additional District Judge, Hamirpur framed the following issues: 1. Whether there are sufficient grounds for condonation of delay in filing appeal, as alleged? OPP 2. Whether application is not maintainable, as alleged? OPR 3. Relief. 6 2025:HHC:17724 12. Issue No.1 has been answered in negative whereas the second issue has been answered in affirmative. In result, the application of the appellants/plaintiffs has been dismissed by holding as under (i) that appellants/plaintiffs had not been able to explain any bonafide reason for not filing appeal against the decree in Counter Claim within time; (ii) the appellants/plaintiffs were trying to find loopholes in law to justify their careless and negligent attitude; and (iii) the plaintiffs-appellants had failed to show sufficient cause for delay in filing the appeal. 13. As noticed above, the only ground taken by the appellants/plaintiffs for condonation of delay was the alleged entertainment of wrong impression by them. In support of their case, the appellants/plaintiffs examined one witness namely Ramesh Kumar (Appellant No.1) who had submitted his examination in chief by way of affidavit dated 25.08.2021. The contents of affidavit filed by 7 2025:HHC:17724 Ramesh Kumar (AW-1) were the reproduction of the averments made in the application. 14. The ground taken by the appellants/plaintiffs in the application, on the face of it, had no basis. Assumingly, appellants/plaintiffs and their counsel had entertained some wrong impression after passing of decree by the learned trial Court, the same came to an end when learned District Judge, Hamirpur dismissed the Civil Appeal No. 59 of 2010 on 03.09.2013. Learned District Judge, Hamirpur had devoted a full paragraph on the subject, which is reproduced as under: 21. “This apart, the Learned Counsel for respondents has argued that the Learned trial Court has dismissed the suit of the plaintiffs and decreed the counter claim of the defendants but while filing the appeal the appellants have simply prayed to set aside the impugned judgment and decree the suit of the plaintiffs and there is no prayer to set aside the counter claim of the defendants There appears substance in this contention. It is a settled preposition of law that suit as well as counter claim both are registered as well as treated separately. No doubt both have been disposed of by the same judgment but while filing the appeal the plaintiffs should have also challenged the findings of the Learned trial Court regarding decree of the counter claim of 8 2025:HHC:17724 the defendants but there is not even a single word to this effect. In other words, counter claim of the defendants remained unchallenged.” 15. In the teeth of aforesaid observation made by learned District Judge, Hamirpur, the appellants/plaintiffs cannot be heard to say that even thereafter they had remained under any wrong impression. Rather, the stance of the appellants/plaintiffs in RSA No. 512 of 2014, Review Petition No.118 of 2015 and SLP No.(C)3945/2016 before Hon’ble Supreme Court belies their plea. Had the ground taken by the appellants/plaintiffs been truthful and bonafide, they could have filed an appeal against the judgment and decree in Counter Claim, immediately after the passing of judgment dated 03.09.2013 by the learned District Judge, Hamirpur and could have also simultaneously assailed the said judgment by filing Regular Second Appeal. 16. Thus, not only that appellants/plaintiffs have failed to show sufficient cause for not filing the appeal against decree in Counter Claim within time, their conduct also cannot be said to be bonafide. 9 2025:HHC:17724 17. In result, I do not find any question of law much less substantial questions of law in the instant appeal. Hence the appeal is dismissed with no order as to cost. Decree sheet be prepared accordingly. (Satyen Vaidya) 4th June, 2025 Judge (Veena).