Delhi District Court
Smt. Sandhya Gupta vs Sh. J.N. Prasad on 18 August, 2007
IN THE COURT OF SH. A.K. PATHAK : ADDITIONAL
DISTRICT AND SESSIONS JUDGE :DELHI
RCA No. 21/05
Date of Institution:- 29/05/05
Reserved for order:- 17/08/07
Date of Decision :- 18/08/07
Sh. Vijay Prakash Gupta
(Deceased) through LRs
1. Smt. Sandhya Gupta
wife of Late Sh. Vijay Prakash Gupta
R/o 3354, Hauz Qazi, Delhi-110 006. (wife)
2. Mrs. Neelu Gupta
W/o Sh. Rajiv Gupta
R/o Sangeet Bharti Building
206, Tansen Marg, Bengali Market,
New Delhi. (Daughter)
3. Mrs. Anu Gupta
W/o Sh. Tarun Gupta
R/o D-56, Hauz Khas,
New Delhi. (Daughter)
4. Mrs. Ambika Gupta
D/o Late Sh. Vijay Prakash Gupta
R/o 3354, Hauz Qazi, Delhi. (Unmarried)
....Appellant
Versus
1
Sh. J.N. Prasad
since deceased
Through legal heirs
1. Smt. Shakuntla Sharma
W/o Late Sh. J.N. Prasad
R/o 29, North Avenue Road,
West Punjabi Bagh,
New Delhi.
2. Sh. Neeraj Sharma
S/o Late Sh. J.N. Sharma
R/o 9-C, U &V Block,
Shalimar Bagh, New Delhi-110 088
3. Sh. Dinesh Sharma
S/o Late Sh. J.N. Prasad
R/o J.S. Dachweg-20,]
1323, M.K. Almere, Netherlands.
4. Sh. Kamlesh Sharma
S/o Late Sh. J.N. Prasad
R/o 29, North Avenue Road,
West Punjabi Bagh, New Delhi-110 026
5. Sh. Naresh Sharma
S/o Late Sh. J.N. Prasad
R/o 12-C-4, Hindustan Times
Apartments, Mayur Vihar,
Phase-I, Delhi-110 091
6. Sh. Paradeep Gupta
S/o Late Sh. Chander Prakash Gupta
R/o F-35, Sector-41, Noida.
2
7. Sh. Pawan Gupta
S/o Late Sh. Chander Prakash Gupta
R/o 10, Birbal, Road, Ist Floor,
Jungpura, Extn. New Delhi.
....Respondents
ORDER
1. Appellant-defendant no. 1 has filed this appeal against the judgment and decree dated 22/1/03 passed by the learned Civil Judge whereby suit for permanent and mandatory injunction filed by the respondent no. 1-plaintiff against the appellant and respondents no. 6 and 7 has been decreed on application under Order 12 Rule 6 CPC filed by the respondent/plaintiff.
2. Appeal has been filed on 29/4/05, whereas judgment and decree passed by the learned Civil judge is dated 22/1/03. Limitation for filing the appeal expired on 22/2/03 meaning thereby there is delay of two years and two months in filing this appeal. An application under Section 5 of the Limitation Act has been filed seeking condonation of this delay in filing the appeal.
3. The grounds which have been taken by the 3 appellant in his application to seek condonation of delay are that the case was listed on 20/1/03 for arguments on application under Order 12 Rule 6 CPC. Arguments were heard on 20/1/03 before lunch and thereafter the matter was reserved for orders till 4:00 p.m. In the evening appellant no. 1 enquired about the order from learned trial Court when he was verbally informed that he shall come on the next date as the order could not be dictated on that day due to paucity of time. On 21/1/03 case was listed at sl. no. 30. The cause list was typed upto sl. no. 29; whereas this case was written in hand at sl. no. 30. On 21/1/03 the learned Judge was on leave, therefore, Reader of the Court fixed the matter for 05/3/03. Appellant no. 1 intimated the date to his counsel. Thereafter appellant no. 1 fell ill and remain admitted in Shanti Mukund hospital from 23/1/03 to 01/2/03. Appellant no. 1 requested his counsel to inspect the file to prepare the case for 05/3/03. Learned counsel prepared an application for inspection but the file was not made available and Reader of the Court informed that case was already disposed of on 22/1/03. On inspection it was revealed that the order written by the Reader on the rubber stamp was deleted by the learned Civil Judge by saying that it was wrongly written thereafter on the same date 4 decree was passed. Appellant moved an application under Section 151 CPC before the learned Civil Judge on 20/3/03 for recalling of the order dated 22/1/03. Learned Civil Judge even stayed the operation of the decree on the said application. Vide order dated 16/4/05, learned Civil Judge dismissed the said application on the ground that same was not maintainable and further that the only remedy available for the appellant is to file appeal. Hence the appeal has been filed.
4. In the reply respondents no. 2 to 5, who are LRs of deceased plaintiff have denied the allegations levelled in the application. It was further stated that even if it is presumed that the allegations made in the application were correct then also appellant came to know about the impugned order on 04/3/03, therefore, he should have filed appeal immediately thereafter. It is well settled law that once decree has been passed then only remedy available to a party is to file appeal. Application under Section 151 CPC for recalling of the order dated 22/1/03 is of no consequences and cannot be good ground for condonation of delay.
55. It was stated that arguments were concluded on 20/1/03, therefore, there was no occasion for appellant no. 1 to tell his counsel on 24/2/03 to inspect the file and to prepare the case for 05/3/03. It was further stated that if any error was committed by the reader when the presiding officer was on leave the same has to be corrected by the presiding officer and there was no requirement of notice to the appellant as arguments were already concluded. It was denied that appellant was bonafidely pursing his remedy before the learned Civil Judge by filing an application under Section 151 CPC. It was stated that no sufficient reasons were explained seeking condonation of delay in filing the appeal.
6. Both the appellant as well as the respondents no. 2 to 5 have filed written arguments and the same have been considered by me and by this order the application under Section 5 of the Limitation Act is being disposed of.
7. It has been contended by the appellant that after hearing arguments on 20/1/03 in pre-lunch session, learned trial Court reserved the orders till 4:00 p.m. Appellant no. 1 enquied about the order from the learned trial Court in the 6 evening when he was verbally informed that he sould come on the next date as the order could not be dictated on that day due to paucity of time. On 21//1/03 the case was listed in the cause list since learned trial Court was on leave, therefore, Reader fixed next date as 05/3/03 . In the evening of 23/2/03 appellant asked his counsel to inspect the file on 24/2/03 to prepare the case for 05/3/03. On moving inspection application it was informed that case had already been disposed of on 22/1/03. As against this, contention of the respondent is that after hearing arguments on 20/1/03 the next date was fixed as 22/1/03 for orders in presence of the counsels. Order was pronounced on 22/1/03. Order fixing for date for judgment was passed in presence of the counsels for the parties. No affidavit of the counsel has been filed to the effect that 22/1/03 was not fixed as the date of order. Appellant cannot take advantage of the Reader's mistake by making an endorsement dated 21/1/03 in the order sheet despite the fact that case was listed for pronouncing the order on 22/1/03.
8. I have considered the rival contentions of both the parties on the point and have perused the record. I find that on 20/1/03 case was taken up on four occasions.
7Firstly, it was taken up at 10:09 a.m. When it was deferred for 10:30 a.m as the learned counsel for the defendant was not available. At 10:30 a.m arguments of the counsel for the plaintiff was heard and matter were deferred for 12:00 p.m for arguments of defendant's counsel. Matter was again taken up at 12:15 p.m when counsels for both the parties were present and it was ordered that matter be taken up at 12:30 p.m for arguments. At 12:45 p.m case was again taken up in presence of the learned counsels for the plaintiff as well as the defendant and arguments on the application under Order 12 Rule 6 were concluded and thereafter it was ordered that matter to come up for orders on 22/1/03. Meaning thereby that in presence of the learned counsels for both the parties matter was listed for 22/1/03 for orders. Therefore, there was no occasion for the appellant no. 1 to enquire from the learned trial Court as to when the order would be pronounced. Order dated 22/1/03 reads as under:-
22/1/03 Present:- Counsel for plaintiff.
None for defendant.
Vide separate order passed, suit of the plaintiff is decreed under Order 12 Rule 6 CPC. File be 8 consigned to Record Room. The order dated 21/1/03 was wrongly written in the case, the same is scored off.
9. In view of the above order sheets merely because the Reader had wrongly listed the case in the cause list and made an endorsement on 21/1/03 since learned presiding officer was on leave matter to come up on 05/3/03, is of no consequences. It appears that said endorsement was wrongly made by the Reader and the same was scored off under the signature of learned trial Court when the file was taken up on 22/1/03. Order dated 22/1/03 also shows that learned counsel for the plaintiff was also present. Accordingly, the pleas taken by the appellant in his application are not corroborated from the record of learned trial Court. If the matter was already adjourned to 22/1/03 by the learned Court for pronouncing the orders vide order dated 20/1/03 passed in the presence of the counsels for the parties there was no occasion for the appellant to enquire from the Court on 20/1/03 as to when the order would be passed. It appears that appellant seeks to take advantage of the mistake of reader.
10. However, even if it is presumed that the 9 appellant came to know about the passing of impugned judgment and decree for the first time in the month of March, 2003 then also the appeal is highly belated having been filed after about two year from the said date. Appellant should have filed the appeal immediately after coming to know about the order in the month of March, 2003. To explain this delay appellant has contended that the time taken in pursuing the application under Section 151 CPC filed by the appellant before the learned trial Court for recalling of the order dated 22/1/03 has to be excluded as appellant had been pursuing his remedy bonafidely. Application for recalling the order was filed on 06/3/03 and the same was disposed of on 16/4/05, therefore, the said period has to be excluded for the purpose of counting the limitation under Section 14 of the Limitation Act. Reliance has been placed on Wamanrao Keshavrao Deshmukh V/s Dinharro Bhausaheb Deshmukh reported in AIR 1999 SC 322, Savitharamma V/s Gurappa Reddy reported in AIR 1996 Karnataka 99 and Bagicha Singh V/s Suba Singh reported in AIR 1983 Punjab and Haryana 174. As against this, contention of the respondent is that the application under Section 151 CPC was made on the advice of the learned counsel for the appellant who was expected to 10 have knowledge that an appeal has to be preferred against the decree, therefore such advice cannot be called to be bonafide and appellant would not be entitled to benefit of Section 14 of the Limitation Act. Reliance has been placed on AIR 1992 Madhya Pradesh 142. Further contention of the respondent is that there is no provision in the Limitation Act for excluding the time spent in prosecuting an application under Section 151 CPC for recalling decree on merits in a suit and since there was no mistake in the impugned decree, therefore, benefit of Section 14 of Limitation Act would not be available to the appellant. Reliance has been placed on AIR 2007 Supreme Court 1634. It has been further contended in the written arguments that sufficient cause for condonation of delay under Section 5 of the Limitation Act must constitute some event or circumstances which arose before the expiry of period of limitation and not the events which arose after expiry of limitation. Reliance has been placed on AIR 1981 SC 733. Reliance has also been placed on AIR 1995 Madras 133 and AIR 1985 Patna 212 to support the contentions that every wrong advice of the counsel would not enable a party appellant to seek condonation of delay on the plea that such party was pursuing a wrong remedy 11 under the wrong advice of an advocate.
11. I have considered the rival contentions of both the parties on this point and I am of the view that in the peculiar facts and circumstances of this case, it cannot be said that appellant was bonafidely pursuing a wrong remedy by filing an application under Section 151 CPC for recalling the judgment and decree dated 22/1/03. Perusal of application under Section 151 CPC filed before the learned trial Court clearly shows that appellant was well aware that proper remedy available to him against the impugned judgment and decree dated 22/1/03 was by way of filing an appeal. In para 10 of the application it has been stated that due to the change of date by the Court the limitation for filing an appeal had expired without any fault of the appellant no. 1 as such he had suffered irreparable loss and injury which cannot be compensated. It is clear from the above that appellant as well as his counsel were well aware that appropriate remedy against the impugned judgment and decree was an appeal. Despite this, an application under Section 151 CPC was pursued before the learned trial Court for unduly long time instead of filing an appeal immediately. It is not the case that appellant was 12 under some bonafide confusion and was not aware about the provision of law which provided that an appeal is maintainable against a judgment and decree. Accordingly, it cannot be said that the appeal could not be filed at the earliest possible stage as the appellant was bonafidely following a wrong remedy under some mis-conception of law. In Dy. Collector, Northern Sub-Div., Panaji, V/s Comunidade of Bambolim reported in Air 1996 SC 148 and reliance whereupon has been placed by the appellant. Learned counsel appearing for the State was not sure as to whether appeal should be pursued under Portugues Code or under Civil P.C., which was extended to Goa. Accordingly, counsel was wrongly pursuing the remedy under Portugues Code and in these facts it was held that appeal could not held to be barred by limitation in view of Section 14 of the Limitation Act. In this case counsel was well aware that the appropriate remedy was to file an appeal. Despite this appeal was not filed at the earliest possible time with an application for condonation of delay. From the facts of this case it cannot be said that appellant was pursuing a wrong remedy bonafidely . Accordingly, I am of the view that appellant is not entitled to benefit of Section 14 of the Limitation Act.
1312. Next contention of the appellant is that since the learned Civil Judge had stayed the operation of the impugned judgment and decree, therefore, the period of stay has to be excluded while counting the period of limitation. Reliance has been placed on Ramji Lal V/s Het Ram reported in AIR 1978 Punjab and Haryana 233 and Smt. Tarakdasi Debi V/s paresh Chandra reported in AIR 1967 Calcutta 332. I do not find any force in this contention of the appellant either. Judgments relied upon by the appellant are in different facts and are not applicable to this case. In Ramji Lal's case, judgment cited supra, execution application filed by the appellant remained undecided in view of the stay granted by the Hon'ble High Court on various occasions thereafter subsequent application made after 15 years of the passing of the decree was treated as revival application for revival of the previous applications. In Tarakdasi Debi's case, judgment cited supra, also there was interim stay in the appeal obtained at earlier stage of the case and in view of the above, it was held that decree holder would be entitled to benefit of Section 15 of the Limitation Act in the matter of calculation or computation of the period Limitation for the execution of decree. In this 14 case merely because learned Civil Judge had stayed the operation of the impugned order would not mean that the appellant could not have filed appeal challenging the judgement and decree.
12. In the light of the above discussions, I am of the view that appellant has failed to disclose sufficient reasons to explain the delay of more than two years in filing the appeal. The application under Section 5 of the Limitation Act is dismissed. Consequently, appeal is also dismissed. No order as to cost. TCR be sent back alongwith the copy of this order File be consigned to Record Room.
Announced in the open Court on 18/8/07 (A.K. Pathak) Additional District Judge:Delhi 15