Jaram Singh Vs Babu Ram CMP(M) No.285 of 2023 03.03.2025 Present: Mr. Goldy Kumar, Advocate, for the applicant. Mr. Sanjay Jaswal, Advocate, for the non-applicant. The present application has been filed seeking condonation of delay in filing the Regular Second Appeal. The appeal in the case at hand is barred by 344 days. On 29.8.2023 based on the pleadings of the parties, the following issue was framed:- “Whether there is sufficient reason for condonation of delay? OPA” In order to support their respective contentions made in the application and reply thereto, the applicant had appeared as his sole witness as AW/1 on 1.7.2024 and the respondent had appeared as his sole witness (RW/1) on 3.12.2024. From a perusal of the application, it is evident that the sole reason being cited by the applicant for condonation of delay in the case at hand is that he had received a notice for possession of the suit land on 13.3.2023 whereinafter he had consulted a counsel at Dharamshala other than the one, who was prosecuting his appeal before the First Appellate Court. On his advice, he had visited the office of the counsel who was handling his first appeal. After collecting the record, the applicant had consulted the counsel at Dharamshala. He had advised him to file the present appeal. It is only on 5.1.2022 that the appeal in the case at hand had been dismissed by the First Appellate Court. In order to support his aforesaid contention, he has appeared as sole witness and has deposed in consonance with what has been stated in the application. Per contra it is contended by the respondent that after the decreeing of the suit, the respondent had preferred an Execution Petition No.5/2020. In execution proceedings, the applicant had appeared on 25.10.2021 and had been contesting the execution proceedings ever since then. In support thereof, the non-applicant has appeared in the witness box and has placed on record certified copies of the zimni orders passed by the Executing Court. The same have been exhibited as Ext.RW1/A. The suit for possession and recovery of Rs.18,000/- had been filed on 2.1.2008 by the present non-applicant before the learned Trial Court. The same was decreed on 30.9.2019. Appeal against the same was presented by the present applicant on 23.11.2019. The same was decided on 5.1.2022. In the case at hand, execution proceedings have been initiated immediately after the dismissal of the suit filed before the learned Trial Court. The dismissal of the suit had taken place before the Trial Court on 30.9.2019. Execution proceedings have commenced on 10.1.2020. In the said execution proceedings, the applicant had appeared on 25.10.2021 and his counsel sought time to file power of attorney and objections. Thereafter in execution proceedings, on 17.12.2021 time was sought to comply with the previous order dated 25.10.2021 and the matter was posted on 19.4.2022. In the meanwhile, in the appeal so filed by the present applicant before the First Appellate Court had also been dismissed on 5.1.2022. Condonation of delay is a discretionary power available to courts. Exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned. Both before the Trial Court and the First Appellate Court, matters are posted on regular and periodical dates. Litigants are expected to keep in touch with their counsels in order to be informed of the next date of hearing as well as the state and stage of proceedings. Before the appeal court regular and periodical dates of hearing are fixed. The process is called ‘adjournment of hearing. A party or his counsel is expected to appear on those dates and keep track of the case. If a litigant does not keep track of his case than ‘want of diligence’ or ‘inaction’ can be attributed to such a litigant. With respect to the aspect of ‘want of diligence’ or inaction attributed to the applicant in the case at hand, it would be appropriate to refer to Perumon Bhagvathy Devaswom v. Bhargavi Amma, (2008) 8 SCC 321 : “14. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record. 15. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as “adjournment of hearing” In what cases can Want of ‘diligence’ or ‘inaction’ be attributed to an applicant it would be appropriate to refer to Katari Suryanarayana v. Koppisetti Subba Rao, (2009) 11 SCC 183 : “Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis in original) In the aforesaid backdrop, the contention of the applicant that he was not informed of the next date of hearing nor was he informed of the factum of the decision on the case shows a lack of diligence/bona fide on the part of the applicant in pursuing the remedies as available to him under law. From the perusal of the order-sheets passed by the Executing Court, it is evident that on 31.12.2022, warrants of possession had been ordered to be executed in the case at hand. Feeling aggrieved by the same, the applicant had preferred appropriate proceedings before the High Court and the execution of warrant have been stayed thereof by the High Court. In the aforesaid facts and circumstances, it is hard to believe that the applicant was unaware qua the status of his appeal preferred against the judgment passed by the learned Trial Court on 30.9.2019. The Court must distinguish between an ‘explanation’ and ‘excuse’. In this respect, it would be appropriate to refer a judgment reported as Sheo Raj Singh (deceased) through Legal Representatives & Others v. Union of India and Another, 2023 (10) SCC 531. The relevant extract of the same are as under: “…...Of course, the courts must distinguish between an ‘explanation’ and an ‘excuse’. An ‘explanation’ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an ‘explanation’ from an ‘excuse’. Although people tend to see ‘explanation’ and ‘excuse’ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. 32. An ‘excuse’ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an ‘excuse’ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure hat a meritorious claim does not reach the higher courts for adjudication.” In view of the aforesaid, there is a complete lack of bona fide/diligence on the part of the applicant in pursuing the legal remedies available under the law. Besides the aforesaid, there exists no sufficient reason/explanation for condoning the delay in the case at hand. As a consequence thereof, present application being devoid of merits is dismissed. (Bipin C. Negi) Judge 3rd March, 2025 (mamta)