Delhi High Court
S.R. Kulkarni vs Birla Vxl Limited on 14 May, 1998
Equivalent citations: 1998RLR519
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal
ORDER Y.K. Sabharwal, J.
1. The appellant in this appeal is defendant in the suit filed against him for recovery of over Rs. 5 lakhs under the summary procedure provided for in Order 37 Code of Civil Procedure. The application filed by the appellant in the suit seeking condensation of delay of re-filing the application for leave to defend has been dismissed and consequently the application for leave to defend the suit has also been dismissed without going into the merits and on the basis of allegations made in the plaint, the suit has been decreed. These are the circumstances under which the defendant has filed the present appeal assailing the decision of learned Single Judge declining to condone the delay in refiling application seeking leave to defend.
2. There was also a delay of 7 days in filing the application seeking leave to defend. The appellant had filed IA 3268/96 seeking condensation of said 7 days delay. This application was not opposed by counsel for the plaintiff who is respondent in this appeal. Therefore, IA 3268/96 was allowed on 4th November, 1997 and initial delay of 7 days in filing leave application was condoned. Therefore, we proceed with the assumption that filing of application for leave to defend on 19th August, 1995 was within limitation on account of delay having been condoned.
3. The Registry, on application for leave to defend, raised an objection on 21st August, 1995 that parties names do not tally. It seems that parties named typed on application for leave to defend did not tally on account of wrong typing on the suit number on the index and on the application. In-stead of typing out correct number of the suit as 1123/94, it was typed as 1124/94. It is thus obvious that parties names would not tally since the Registry must be tallying the same with particulars of Suit No. 1124/94. The application for leave to defend with the objection of the Registry was, however, received back by the appellant only on 4th March, 1996 and after removal of objection by correcting the suit number the application for leave to defend was refiled on 4th March, 1996, itself. We may note that when the matter had come up before the Joint Registrar (A) on 9th January, 1996 it was noticed by the Joint Registrar in his order that application for leave to defend was not on record though reply thereto had been filed by the plaintiff which was on record. This order further states that the counsel for the defendant may get in touch with Registry and get the application for leave to defend placed on record positively before the next date. The case was directed to be listed before the Court on 27th February, 1996. Further the order dated 27th February, 1996 passed by learned Single Judge shows that despite the aforesaid order of the Joint Registrar, the application for leave to defendant had not been placed on record. Again counsel for the appellant was directed to check-up and remove objection, if any, and have the same placed on record. On 27th February, 1996 the case was directed to be listed before the Joint Registrar for completion of pleadings on 20th March, 1996 and before the court on 12th April, 1996. On 20th March, 1996 the Joint Registrar noticed that the application for leave to defend was still lying under objection and it was not refiled after removal of objection despite the order dated 27th February, 1996 though reply and rejoinder to the said application were already on record. Counsel for the appellant was again directed to ensure the removal of the objection on the application for leave to defend and get the same placed on record before the next date i.e. 12th April, 1996 which was fixed for disposal of the application for leave to defend. The reason for the application for leave to defend not being on record seems to be that the Registry raised yet another objection, namely, the non-signing of Page No. 8 of the said application. As already noticed above after removal of objection regarding names of parties not tallying, the application for leave to defend was refiled on 4th March, 1996. The second objection was raised by the Registry on 16th March, 1996. The endorsement on the application shows that this objection was removed on 21st March, 1996 though application for leave to defend was refiled in the Registry after removal of objection on 27th March, 1996. The application of leave to defend was, thus, before the Court on 12th April, 1996. On that date the case was adjourned giving an opportunity to the appellant herein to move an appropriate application for explaining the delay in refiling of the application for leave to defend. This order led to filing of IA 4380/96 on which the order impugned in this appeal was made declining to condone about 200 days delay in refiling the application seeking leave to defend.
4. There can be no doubt in respect of the legal proposition as also noticed in the order under appeal that the term 'sufficient cause' deserves to be liberally construed so as to advance substantial justice. Further there can also be no dispute regarding the observation of learned Single Judge that mere raising of plea that the delay in taking some action occurred unwittingly despite efforts to avoid it, cannot be accepted as such to constitute sufficient cause and such a plea has to be tested on facts. One factor has however, to be kept in view in this appeal that the delay which was declined to be condoned was in refiling the application for leave to defend as initial delay of one week, as noticed hereinbefore, had already been condoned. Therefore, the initial filing of the application for leave to defend has to be taken to be within time.
5. It may be noticed that Rule 5, in particular, sub-Rule 3 of Rule 5 of Chapter-1 of Volume V of High Court Rules & Orders which deals with judicial business and is concerned with the presentation and reception of appeals, petitioners and applications for review and revision was amended in the year 1988. The effect of the amendment was that, if the Memorandum of Appeal is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar/In-charge of the Filing Counter-under sub-rule (1), it shall be construed as fresh institution. A note has been appended to the said Rule which states that the provisions contained in Rule 5(1), 5(2) and 5(3) shall mutates mutants apply to all matters, whether Civil or Criminal. It may be useful to reproduce Rule 5 as under;-
"Rule - 5. Amendment - The Deputy Registrar, Assistant Registrar, In-charge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memo- randum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code.
(2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Assistant Registrar, In-charge of the filing Counter under sub-rule (1), it shall be registered and listed before the court for its dismissal for non-prosecution.
(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Assistant Registrar, In-charge of the filing counter, under sub-rule (1) it shall be considered as fresh institution."
Note - The provisions contained in Rule 5 (1), 5(2) and 5(3) shall mutates mutants apply to all matters, whether civil or criminal.
6. The contention of learned counsel for the appellant is that a bare reading of the aforesaid Rule would show that it applies to appellate, civil and criminal matters and has no application to the matters covered by Delhi High Court (Original Side) Rules, 1967. The further contention of Mr. Gupta is that the return and refiling of the plaint, petition, application or proceedings of the matters on the Original Side is governed by Rule-2 of Chapter-4 of the Delhi High Court Original Side Rules. The said Rule-2 reads as under;-
"Rule-2 Endorsement and scrutiny of documents.
"(a) The officer in-charge of the filing-counter shall endorse the date of receipt on the plaint, petition, application or proceedings and also on the duplicate copy of the index and return the same to the party. He shall enter the particulars of all such documents in the register of daily filing and thereafter cause it to be sent to the office concerned for examination. If on scrutiny, the document is found to be defective, such document shall, after notice to the party filing the same, be placed before the Registrar. The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary.
(b) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the document.
(c) Any party aggrieved by any order made by the Registrar under this rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers."
7. Reference has also been made to certain practice directions issued by the High Court concerning the filing and return of documents. The contention of Mr. Gupta is that the refiling of the application for leave to defend would be governed by aforesaid Rule 2 and refiling to such a document does not amount to fresh institution as aforesaid Rule in Vol. 5 of High Court Rules and Orders has no applicability to the matters on the Original Side of this Court. For the view, we are taking on merits of the facts of the present case, it is not necessary to decide the contention urged by Mr. Gupta.
8. Notwithstanding which of the aforesaid Rules are applicable, the question of condensation of delay in refiling of an application has to be considered from a different angle and viewpoint as compared to consideration of condensation of delay in initial filing. The delay in refiling is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act (See Indian Statistical Institute Vs. M/s. Associated Builders and others AIR 1978 Supreme Court 335). In the present case, the initial delay of 7 days in filing the application for leave to defend stood condoned and that has not been challenged by any of the parties. It is no doubt true that the counsel for the appellant had not been very diligent after filing of application for leave to defend on 19th August, 1995 as counsel did not check whether the application was lying in the Registry with any objection or not. Con-sidering, however, the nature of the objections, it was a matter of removal of the objections by the counsel and on the facts of the present case, it is difficult in this case to attribute any negligence to the party. On the facts of the case, the effect of negligence or 'casual approach', which would be appropriate term to be used here, of the counsel on his client, does not deserve to be so rigorous so as to deny condensation of delay in refiling the application. The casual approach of the counsel is evident as no timely efforts were made firstly to find out after filing application on 19th August, 1995 as to whether the Registry had raised any objection or not. Secondly, despite order of the Joint Registrar dated 9th January, 1996, the objection was removed only on 4th March, 1996 i.e. after the date which the Joint Registrar had fixed for the application being posted for hearing before the Court. When the application was refiled on 4th March, 1996, one would expect the person filing to be more careful thereby not giving an opportunity to the Registry to raise any other objection. But that was no so. The result was that the second objection was raised which, as noticed above, was removed on 21st March, 1996 but application was refiled only on 27th March, 1996. Apart from this casual approach, we do not find any mala fide intention on the part of the appellant to delay the proceedings. When there is negligence or causal approach in a matter like this in refiling of an application, though the court may not be powerless to reject an application seeking condensation and may decline to condone the delay but at the same time, passing of any other appropriate order including imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of refiling of the application.
9. On the facts and circumstances of the present case, we are of the view that ends of justice would be met, if the delay in refiling the application for leave to defend is condoned on payment of costs by the appellant to the respondent. Therefore, we allow the appeal and condone the delay in refiling, as prayed in IA 4380/96 subject, however, to payment of costs of Rs. 10,000/- by the appellant to the respondent. On the payment of costs by the next date before learned Single Judge, the application for leave to defend would be considered on its merits. Parties are directed to appear, for directions, before learned Single Judge on 13th July, 1998.
The appeal is allowed in the above terms.