Delhi District Court
Sh. Partap vs Sh. Prakash Chand on 19 November, 2013
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 10/13
Unique I. D. No. 02401C0284672013
1. Sh. Partap
S/o Late Sh. Manohar Lal
R/o AP112C, Pitam Pura, Delhi.
2. Sh. Arjun,
S/o Late Sh. Manohar Lal.
3. Sh. Ashok,
S/o Late Sh. Manohar Lal.
Both R/o H.No. 8706,
1st Floor, Model Basti, Sidipura,
Karolbagh, New Delhi110 005.
......Appellants
Versus
1. Sh. Prakash Chand
S/o Late Sh. Budh Ram @ Buddhu
R/o H. No. 8706, Ground Floor,
Model Basti, Sidipura, Karolbagh,
New Delhi110 005.
2. Smt. Mishro Devi
W/o Late Sh. Manohar Lal,
R/o 8706, 1st Floor, Model Basti,Sidipur,
Karolbagh, New Delhi110 005.
.......Respondents
RCA10/13
Partap & Ors. Vs. Parkash Chand & Anr. 1/7
Date of institution of appeal : 05.06.2013
Date of reserving the judgment : 20.10.2013
Date of pronouncement of judgment : 19.11.2013
JUDGMENT
1. The present appeal has been filed by the appellant against the impugned order of Ld. Civil Judge dated 30.10.2012.
2. The appeal is accompanied by an application u/s 5 of Limitation Act, 1963, seeking condonation of delay in filing the appeal. It is stated in the application that there is delay of 196 days in filing the present appeal. With respect to sufficient cause, it is asserted that due to sad demise in the relation, the appellants had to go and stay for some time at District Jhajjar, Haryana, where mother of the appellants fell sick and was hospitalized for treatment. Subsequently, marriage of daughter of appellant no1 was solemnized and appellant became busy and could not contact their counsel. It is prayed that delay be condoned by this court.
RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 2/7
2. The respondent no1 strongly contested the claim of the appellant and filed reply controverting all the averments made therein and seeking dismissal of the application as well as the appeal.
3. The relevant facts of the case are that respondent no1 (plaintiff) filed a suit for partition, possession and perpetual injunction with respect to property no. 8706, Model Basti, Shidi Pura, Karol Bagh, New Delhi110005 and the preliminary decree was passed on 27.02.2012. The plaintiff (respondent no1) was held entitled to half share in the suit property. The parties were directed to suggest mode of partition within 30 days, failing which local commissioner was ordered to be appointed. Vide the impugned order dated 30.10.2012, the Ld. Civil Judge ordered that suit property will be divided equally between the parties in terms of the report of the local commissioner. The ground floor as shown in green colour in the site plan has been given to the plaintiff and first floor of the suit property has been given to the defendants (parties had already been in possession in the same manner).
RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 3/7
4. The present appeal has been filed on 04.06.2013, much after the lapse of statutory period of limitation and directed against the order dated 30.10.2012.
5. I have heard Sh. J.C. Vashisht, Ld. counsel for appellants, Sh. Manoj Lohat, Ld. counsel for respondent no1, and given due consideration to the facts of the case, rival contentions and the case law referred by both the parties during the course of arguments. Ld. counsel for appellant has relied upon the following citations :
i) State of Nagaland Vs Lipok AD (2005) 3 SCC 752;
ii) DESU Vs Victor Cable Industries 95 (2002) DLT 694
iii) Ram Nath Sao @ Ram Nath Sahu & Ors. Vs Gobardhan & Ors., Appeal No. 1704/02, decided by Supreme Court of India.
iv) Spl. Land Acquisition Officer Vs Lilavatiben Kodar Ranchhod (2002) 3 GLR 26.
Ld. counsel for respondent no1 has relied upon the following citations : RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 4/7
i)Balwant Singh Vs Jagdish Singh & Ors., 2010(3)RCR (Civil) 856 Supreme Court of India.
ii)Tayal Papers & Traders & Ors. Vs. Subhash Chand 172 (2010) DLT 184 Delhi High Court.
iii)Dalip Singh Vs State of U.P. & Ors. IX (2009) SLT 167.
iv)M/s Democratic Builders Vs Union of India, AIR 1993 Delhi 132.
6. The settled legal position with respect to condonation of delay has been that courts should adopt liberal and justice oriented approach and it is not proper to have hyper technical approach while evaluating the sufficient cause put up by the applicant. It has also been stressed by the higher Courts that the applicant should approach the courts with clean hands and it is to be ensured that delay is not on account of dilatory tactics, want of bonafides, the deliberate inaction and negligence on the part of the applicant.
7. Coming to the present case, it is the case of the appellants that due to the death of relative, the appellants went to District Jhajjar, RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 5/7 where their mother (who is respondent no2 in the present appeal and defendant no1 in the original suit) fell ill and was hospitalized. The death certificate of relative is placed on record, according to which the date of death is 09.08.2011 i.e. much prior to the passing of impugned order. The medical documents with respect to Smt. Mishro Devi pertained to the period prior to the passing of the impugned order and they do not suggest any kind of serious illness or hospitalization or prolonged treatment for that matter. The marriage card of the marriage of daughter of appellant no1 shows that marriage of the daughter of appellant no. 1 was solemnized on 24.11.2012 i.e. within one month of the passing of the impugned order. There is no justification for further delay in filing the appeal.
8. The impugned order was passed on 30.10.2012 and from that date onwards till the filing of the appeal there is no explanation whatsoever to justify the delay to the extent of several months in favour of the appellants. It is clear that appellants have taken false and frivolous grounds to seek condonation of delay in filing the present appeal. It is also apparent that appellants have not approached the courts with clean RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 6/7 hands as they have taken false excuses to show sufficient cause. There is no merit or substance in the application of the appellants filed u/s 5 of Limitation Act, accordingly same is dismissed.
9. The appeal being barred by limitation is also dismissed.
10. Copy of this judgment be sent to the trial court alongwith trial court record. Appeal file be consigned to record room. Announced in open Court on 19th Day of November, 2013.
(ANJU BAJAJ CHANDNA) Addl. Distt. Judge(Central)01, Tis Hazari Courts, Delhi.
RCA10/13 Partap & Ors. Vs. Parkash Chand & Anr. 7/7