Delhi District Court
Shri Madan Singh vs Ministry Of Urban Development on 8 March, 2010
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PPA 02/10.
IN THE COURT OF SH. GURDEEP KUMAR:
D.J.VCUMASJ/ I/C (SOUTH) P.H.C., NEW DELHI
IN THE MATTER OF
PPA 02/10.
Shri Madan Singh,
Flat No. SectorIV/69/E,
M.B. Road,
New Delhi.
...Appellant
Versus
1. Ministry of Urban Development,
Through its Authorized Representative,
Nirman Bhawan,
New Delhi.
2. Directorate Estate (Litigation),
Nirman Bhawan,
New Delhi.
...Respondents
O R D E R : Date of institution of case : 19.01.2010.
Date on which the judgment
has been reserved : 20.02.2010.
Contd..
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PPA 02/10.
Date on which the judgment
has been delivered : 08.03.2010.
1. This is an application u/o XLI Rule 3A CPC read with
proviso of Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for condonation of delay in filing the appeal u/s 9 of the Act.
2. Briefly stated the appellant has filed an appeal u/s 9 of the Act against an order dated 16.09.2009 passed by the Estate Officer u/s 5 of the Act in respect of the public premises bearing No. Sector IV/69/E, M.B. Road, New Delhi. Along with that appeal, the appellant has filed the present application seeking condonation of delay in filing appeal.
3. I have heard Ld. counsel for both the parties. I have gone through the application, the Estate Officer record and other relevant Contd..
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material on record.
4. Ld. counsel for the appellant states that the impugned order was passed on 16.09.2009 by the Estate Officer; that whatsoever delay has occurred in filing the present appeal was on account of illness of the appellant and, therefore, the appellant has shown just and sufficient cause for condonation of delay in filing that appeal. In that regard, Ld. counsel has relied upon the case law reported as Commissioner Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Anr. (2009) 3 SCC 525 and The State of Bihar and Ors. Vs. Arjun Prasad Rajak 2009(3) Scale 569.
5. On the other hand, Ld. counsel for the respondent has argued that the appellant has not been able to show just and sufficient cause which is prerequisite to condone the delay in filing appeal; that averments in the application are not supported by cogent evidence and, Contd..
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therefore, there are no grounds to condone the delay in filing that appeal.
6. It is settled law that to attract the provisions of Section 5 of the Limitation Act, the appellant is under an obligation to show sufficient cause for not preferring an appeal within the period of limitation prescribed under the law. It is also settled proposition of law that appellant is required to explain each day's delay. Reference in this regard may be made to the case law reported as Krishna Continental Ltd. & Ors. (M/s) Vs. Sh. Balkrishan Sharma 2007 VII AD (Delhi) 633; and Smt. Tara Wanti Vs. State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab and Haryana 32 Full Bench. Reference in that regard is also made to a decision by our own Hon'ble High Court in the case of Jagdish etc. Vs. Har Sarup 1978 RLR 266 wherein Their Lordships have held as under : "It is now well settled that each day's delay has to be explained. I find that the Contd..
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appellants have failed to satisfy me that they had sufficient cause for not filing the copies within time."
The aforesaid proposition of law is squarely applicable to the facts of this case. In view of the facts of this case, initial burden lies on the appellant to explain each day's delay. Onus is also on the appellant to show sufficient cause which prevented him from filing appeal in time. He has not brought on record anything to explain each day's delay in filing the appeal. As already mentioned above, the impugned order was passed by the Estate Officer on 16.09.2009. The present appeal was filed on 19.01.2010 u/s 9(1)(a) of the Act. The limitation period of 12 days is prescribed for filing an appeal against an order u/s 5 of the Act. The limitation period for filing the present appeal expired on 28.09.2009. The present appeal was filing on 19.01.2010. It is noticed that the averments in the application are quite vague and are not supported by any cogent evidence. The medical certificate which is dated 01.1.2010 is also vague. It does not specify that the Contd..
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appellant had been under the treatment of the Doctor who has issued that certificate. There is also no mention about the medicines being taken by the appellant. He also does not say that the appellant was under his medical treatment at any point of time. Besides, that medical certificate is not signed by the appellant as a patient under treatment of the said Doctor. This shows that the said medical certificate has been procured by the appellant in order to make out a case for seeking condonation of delay in filing appeal. Admittedly, the appellant is a Central Government Employee and must be a beneficiary of CGHS. He must have been availing the medical facilities being provided under the CGHS. There is no averment nor there is any proof whatsoever to show that he was under medical treatment of any Doctor in any CGHS Dispensary or Government Hospital during the relevant period. Therefore, I am of the considered view that the appellant has not been able to explain each day's delay for not filing the appeal during the long period from 28.09.2009 till 19.01.2010. With due respect to Their Contd..
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Lordships, the case law relied upon by the Ld. counsel for the appellant does not help him in any manner. In the case of The State of Bihar and Ors. Vs. Arjun Prasad Rajak (supra), there was one year and eighteen days delay but it was found by Their Lordships that sufficient explanation had been averred by the appellant in his affidavit filed for seeking condonation of delay in filing the appeal. In the light of this, Their Lordships condoned the delay in filing the appeal. Similarly in the case of Commissioner Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Anr. (supra) also Their Lordships examined the application u/s 5 of the Limitation Act and came to the conclusion that the delay of 178 days has been properly explained by the appellant. In view of this, the said delay was condoned by Their Lordships. However, in the case in hand, the appellant has not come up with any cogent and reasonable explanation and, therefore, there are no grounds to condone the delay. He has also not been able to disclose sufficient cause which is prerequisite to condone the delay in filing the Contd..
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appeal.
7. For the detailed reasons given above, I find no merits in the application to condone the delay u/s 5 of the Limitation Act. Consequently, the application u/s 5 of the Limitation Act is dismissed.
8. Consequent to dismissal of the application for condonation of delay, appeal u/s 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for setting aside the impugned order dated 16.09.2009 is deemed to be bared by limitation and hence not maintainable. Therefore, the said appeal is also dismissed being barred by limitation. Estate Officer record be returned. Copy of this order be sent to the Estate Officer. Appeal file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT (GURDEEP KUMAR) th ON 08 Day of March, 2010. D.J.VcumASJ/ I/C (SOUTH) P.H.C., NEW DELHI.
Contd..