Delhi High Court
Brij Mohan vs Sunita on 13 January, 2010
Author: Aruna Suresh
Bench: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT APPEAL NO.21/2009
Date of Decision: January 13, 2010
BRIJ MOHAN ..... Appellant
Through: Mr.Tarun Kumar and
Mr.J.P.Upadhyay,
Advocates.
versus
SUNITA ..... Respondent
Through: None.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral) CM No.3615/2009 (for delay in refilling)
1. By way of this application, appellant has sought condonation of delay of 380 days in refilling the appeal. It is averred in the application that appellant had filed the MAT A. No.21 /2009 Page 1 of 11 appeal in February 2008 against the judgment and decree of the Trial Court dated 29th November, 2007. Since Registry raised certain objections and sought clarifications of the same, appeal was taken back from the Registry. Appellant pursued refiling of the appeal with his counsel but the appeal could not be filed in time. In December 2008 i.e. after about more than nine months, appellant had engaged another counsel to get the appeal refiled. However, appeal was refiled only on 13th March, 2009 as the new counsel took some time to remove the objections in refiling the appeal. This resulted in delay of 380 days in refiling the appeal.
2. Order XLI Rule 3A CPC enables an appellant to file his appeal after the expiry of period of limitation specified therefor, to be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies on to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. The Court is within its powers to reject the application without the issue of a notice to the respondent, MAT A. No.21 /2009 Page 2 of 11 if it finds no reason to condone the delay prima facie on the averments contained in the application.
3. Appellant has not stated anything indicating sufficient cause for not refiling the appeal within the prescribed period of limitation i.e. not exceeding 7 days at a time and 30 days in the aggregate to be fixed by Deputy Registrar, Assistant Registrar, Incharge of the Filing Counter. Rather application is vague and is devoid of any material particulars. Even the affidavit enclosed with the application is nothing but only a supporting affidavit containing no reason for delay in refiling the appeal.
4. Learned counsel for the appellant has submitted that delay is only in refiling the appeal, but the appeal was filed in time. Therefore, delay in refiling the appeal be condoned.
5. Part G, „Rules relating to proceedings in the High Court of Delhi‟, Chapter 1, Rule 5 Part A sub(a) lays down the statutory period for refiling of the appeal and also the MAT A. No.21 /2009 Page 3 of 11 power of the Deputy Registrar to return the appeal for amendment and refiling the same. This rule reads as below:-
"5.(1) Amendment- The Deputy Registrar Assistant Registrar, Incharge 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 memorandum of appeal, for the reason specified in Order XLI Rule 3, Civil Procedure Code.
(2).............
(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar in charge of the Filing Counter, under sub-
rule (1) it shall be considered as fresh institution.
6. As per Sub rule (3) if the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar, Incharge of the Filing Counter under sub-rule (1), it would be considered as a fresh institution.
MAT A. No.21 /2009 Page 4 of 11
7. Therefore provisions of Section 5 of the Limitation Act would not be attracted to a case, where appeal was initially filed within the period of limitation but was returned back with certain objections to be refiled within the period specified by the Dealing Assistant.
8. The appeal was initially filed on 25th February, 2008, on which the Dealing Assistant raised following objections:-
"6. Previous office sheet bearing the objections be filed.
7. Complete appeal be signed."
Hence, the appeal was returned with the directions to remove the objections and the same was to be refiled within a week.
9. Dealing Assistant had no power to extend the period of refiling beyond 30 days. Appellant failed to remove the objections like caveat report to be obtained, opening sheet to be filed and placed just before the appeal, fair typed copies of dim annexures to be filed, correct provisions of law to be given and page numbering to be MAT A. No.21 /2009 Page 5 of 11 done properly within the prescribed period. Therefore, refiling of appeal on 13th March, 2009 tantamounted to fresh filing of the appeal beyond the period of limitation. Condonation of delay, if any, is to be considered on the facts and circumstances of this case.
10. As stated above, no reasons as specified under Order XLI Rule 3 CPC have been assigned by the appellant, neither in his application, nor in the affidavit. No explanation has been given as to why the objections could not be removed despite appellant having been asked to do the same not once but on various occasions.
11. In Asha Sharma & Ors. Vs. Sanimiya Vanijiya P. Ltd. & Ors. 162(2009) DLT 542 (DB), in similar circumstances where the appeal was refiled after expiry of 30 days‟ period, the Division Bench of this Court considered the provisions contained in Part G Chapter 1 Rule 5, Part A sub(a) it was observed in para 9 of the judgment as under:-
"9. It is quite clear from a bare perusal of the above Rule that the Deputy Registrar cannot grant time of more than 30 days in aggregate for MAT A. No.21 /2009 Page 6 of 11 re-filing of a Memorandum of Appeal, for the reasons specified in Order XLI Rule 3 of the Code of Civil Procedure. If the Memorandum of Appeal, after removing the defects notified by the registry, is filed after more than 30 days, it shall be considered as a fresh appeal, filed on the date on which it is presented after removal of the defects."
12. The term "sufficient cause" appearing in Order XLI Rule 3 CPC is generally to be construed liberally so as to advance justice to the parties and the delay in refiling is not subject to the rigors, which are usually applied in excluding the delay in a petition filed under Section 5 of the Limitation Act. Therefore, while considering condonation of delay in re-filing, the Court is required to consider the nature of the defects which led to return of the document and if the objections are minor and technical in nature, the Courts should be more liberal in condoning the delay. However, the standards of testing bonafides of the appellant have to be more strict where mandatory documents are required to be filed with the Memorandum of Appeal. The approach which the Court is required to adopt has to be different in each case depending upon the MAT A. No.21 /2009 Page 7 of 11 nature of objections raised by the Registry and required to be removed by the appellant. The Court has to be conscious of the fact that delay in refiling the appeal vests a right in favour of the respondent who, on account of non- filing of the appeal, becomes entitled to the benefits of the judgment/decree/order against which the appeal is preferred. Non filing of the appeal within the period of limitation or refiling of the appeal beyond the period of limitation makes the other party believe that the appellant has accepted the order/judgment and decree of the Trial Court or the First Appellate Court, as the case may be. Therefore, the Court cannot mechanically condone the delay in refiling the appeal, even if no reasonable cause is shown at all.
13. In Asha Sharma's case (supra), it was further observed by this Court as follows:-
"23. It is trite law that Rules of Procedure being hand-mades of justice, a party should not be refused relief merely because of some mistakes, negligence or inadvertence. Rules of Procedure are designed to facilitate justice and further its ends. But, even if we take a rather liberal MAT A. No.21 /2009 Page 8 of 11 approach in this matter, we are unable to find any good ground for condonation of delay in filing this appeal. None of the reasons given in the application is convincing or logical. The impression we gather is that the appellants deliberately delayed filing of the appeal so as to prolong the litigation. It cannot be said that even if the appellants were totally negligent and careless and have not come forward with any worthwhile explanation for the delay, the court ought to condone the delay in re-filing. The Rules framed by the High Court cannot be allowed to be taken so casually and there will be no sanctity behind the rules if every delay in re-filing, is to be condoned irrespective of howsoever unreasonably long and unexplained it be, and howsoever mandatory be the nature of the documents, non-filing of which renders the Appeal defective. We cannot condone the delay merely because an application for condonation of delay has been filed. No court would not like to reject an appeal as time-barred unless there are strong reasons, which compel the court to take such a view. Some indulgence and a liberal view in such matters is well-accepted but to say that the court has no option in the matter and must accept the Memorandum of Appeal irrespective of the nature of the objections and delay in re-filing, even where there is no reasonable explanation to justify the delay, would only be travesty of justice and will be as good as MAT A. No.21 /2009 Page 9 of 11 removing the relevant Rule in High Court Rules and Orders, from the Statute Book.
24. These days we find a growing tendency to file an incomplete Memorandum of Appeal and then take unreasonably long time to remove the defects, even where such defects can be cured within a very short time. Such a practice cannot be said to be conducive to be fair and reasonable and therefore needs to be curbed. An unduly liberal and benevolent approach will only give encouragement to such unfair practices and therefore is not called for. When an Appeal comes up for hearing long after expiry of the prescribed period of limitation, it springs surprise on opposite party, which assumes finality in his favour on account of non-filing of Appeal within a reasonable period."
14. As discussed above, in the instant application appellant has not disclosed any cause what to speak of a reasonable cause for delay of 380 days in refiling the appeal. Hence, I find no merits in this application to condone the delay in refiling the appeal. The application is, therefore, dismissed.
MAT A. No.21 /2009 Page 10 of 11 CM No.3614/2009 (for exemption)
15. Exemption is sought from filing the certified copies of the annexures.
16. With dismissal of the application seeking condonation of delay in refiling the appeal, this application has become infructuous. Hence, the same is accordingly dismissed.
MAT APPEAL NO.21/2009
17. In view of dismissal of CM No.3615/2009, the appeal, being barred by period of limitation, is liable to be dismissed. It is accordingly dismissed.
(ARUNA SURESH) JUDGE JNAUARY 13, 2010 sb MAT A. No.21 /2009 Page 11 of 11