Delhi District Court
Sh. Pradeep Kumar Gupta vs Shri Anil Kumar on 28 April, 2014
:1 :
IN THE COURT OF SH. DEVENDER KR JANGALA:
ADDL. DISTRICT JUDGE:WEST: TIS HAZARI: DELHI
RCA No. 16/14
Sh. Pradeep Kumar Gupta
S/o Late Shri M.S.gupta,
R/o House No. 37, LIG Flats, Pocket3,
Paschim Vihar, New Delhi - 110063. ..........Appellant
Versus
Shri Anil Kumar
S/o Late Sh. Satpal,
R/o Plot no. 80, 2nd Floor,
Pratap Nagar, Jail Road,
New Delhi - 110064. ............Respondent.
O R D E R
28.04.2014
1. By this order I shall dispose off an appeal under order 43 Rule 1 r/w section 104 CPC filed by the appellant for setting aside the impugned order dated 26.08.2011 passed by the court of Ld. Civil Judge, West(2), Delhi.
2. The necessary and brief facts of the case are as under: The plaintiff (respondent herein) filed the present suit for recovery of Rs. 43,000/ against the defendant (appellant herein) on 30.03.2009. RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:2 :
The ld. Civil Judge vide its judgment dated 14.07.2010 decreed the suit filed by the plaintiff for a sum of Rs. 43,000/ as principal amount alongwith interest @ 8% p.a. from the date of filing the suit till realization.
3. The plaintiff Sh Anil Kumar filed an execution petition of money decree and during the execution proceedings the present appellant approached the ld. Trial Court. An application under Order 9 Rule 13 CPC was filed by appellant / JD No.1 on 04.03.2011 and Ld. trial court vide its detailed order dated 26.08.2011 dismissed the application under order 9 rule 13 CPC filed by the defendant / JD No.1. The operating portion of the order of ld.Civil Judge is reproduced as under :
"In the present matter even if the version of the applicant/defendant is taken to the fact, then also there appears delay of around more than 12 days in filing the present application. No prayer for condonation of delay in filing the present application has beens sought or any sufficient cause for condoning the delay is made out. The present application is found to be barred by period of limitation, hence, the same is hereby RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar. :3 :
dismissed. No order as to costs".
4. The appellant by way of the present appeal has challenged the order dated 26.08.2011 passed by ld. trial court on the following grounds:
(a) It is stated that the ld. Civil Judge has failed to appreciate the fact that the application under order 9 rule 13 CPC filed by the applicant was within limitation period. It is stated that the applicant was never served with the summons and did not appeared in the court. It is stated that the appellant was completely ignorant of the suit and on coming to know, he applied for certified copy of the same. It is stated that the time spent in availing the certified copy of the suit is exempted under section 12 of the Limitation Act and after exemption of the said period, the application under order 9 rule 13 CPC filed by the appellant was well within limitation.
(b) It is stated that ld. Civil Judge has failed to appreciate the Judgment of the Hon'ble Supreme Court in the case D.P. Mishra vs Kamal Narayan Sharma and Another (AIR 1970 SC 1477).
(c) It is stated that the Ld. Trial Court has failed to appreciate the fact that appellant has taken immediate steps and inspected the case file, applied for certified copy and filed the application within the limitation period.
RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:4 :
It is prayed that the order passed by the ld. Trial Court dated 26.08.2011 may kindly be set aside.
5. The appellant also moved an application under section 5 of Limitation Act for condonation of delay in filing the appeal.
6. The notice of the present appeal and the application for condonation of delay was issued to the respondent. The respondent put the appearance however, reply on behalf of the respondent not filed. Arguments advanced by Sh. Abhishek Kumar, Ld. Counsel for the appellant and Sh. I.J. S. Barnala, Ld. counsel for the respondent heard. Record perused.
7. In the present case the appellant has moved an application under section 5 of Limitation Act for condonation of delay in filing the appeal. The application moved by the appellant has been dismissed by the Ld. Trial court on 26.08.2011 whereas the present appeal is filed on 05.10.2011. There is delay of four days in filing the present appeal. The delay in the present appeal is not inordinate. The appellant has given explanation that he was down with fever which resulted in late filing of the appeal . In view of the explanation furnished by the appellant, I am of the considered opinion that he was prevented from filing the appeal within limitation period due to sufficient cause. Accordingly, the delay RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:5 :
is condoned and application under section 5 of Limitation Act is allowed.
8. Now I will proceed to examine the grounds of the appeal.
(a) It is stated by the appellant that the application under oder 9 rule 13 CPC was filed by the appellant within period of limitation. It is admitted case that the judgment/decree against the appellant was passed on 14.07.2010. As per article 123 of the Limitation Act, 1963, the limitation for filing the application for setting aside the exparte decree is 30 days from the date of decree. The present application under order 9 Rule 13 CPC was filed by the JD no. 1/ defendant no. 1 on 04.03.2011. It is crystal clear that the application was not filed by the appellant within the limitation period of 30 days from the date of decree. The application was filed beyond the limitation period of 30 days. Therefore, the contention of the appellant is not tenable in the eyes of law, that the application under Order 9 Rule 13 CPC was filed within the limitation period before the ld. trial court.
(b) It is also contended by the appellant that ld. Trial court has failed to appreciate the judgment reported as D.P. Mishra vs Kamal Narayan Sharma and Another (AIR 1970 SC 1477). RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:6 :
I have carefully perused the judgment relied upon counsel for the appellant. The appellant has reproduced one paragraph of the judgment (Supra) in para B of the grounds of appeal.
" No application is required to be made seeking the benefit of Section 12 of Limitation Act, nor in principle we find any reason or logic for taking such a view".
During the course of argument, Ld. counsel for the appellant has failed to explain from where he has reproduced this paragraph. I have also carefully gone through the entire judgment filed on record by the appellant, but the above said paragraph of the judgment relied on by appellant is no where found written in the said judgment. It is no where stated in the judgment (Supra) that application is not required to be made seeking the benefit of Section 12 of Limitation Act. The Hon'ble Supreme Court in judgment (supra) held that the exclusion of time provided by Section 12 of limitation Act, 1908, is permissible in computing the period of limitation for filing the case in the High Court under the Representation of the People Act, 1951. Therefore, careful perusal of the judgment (Supra) of the Hon'ble Supreme Court made it clear that the same is not applicable to the facts of the present case, and the contention of the appellant is not tenable in the eyes of law. RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:7 :
(c) It is further contended by the appellant that he had taken immediate steps for inspecting the case file, obtaining the certified copy and filing the application u/s 9 rule 13 CPC. The promptness if any on the part of appellant is not helpful if the application is not filed within the limitation period. The promptness of the appellant may be considered as supporting ground for condonation of delay if the same is prayed by the appellant. In the present case appellant had not prayed for condonation of delay before the Ld. Trial Court, therefore, promptness if any on the part of appellant is not helpful as the application as filed beyond the limitation period.
(d) The appellant in the application under order 9 rule 13 CPC and in the present application has stated that the time spent for obtaining the certified copy is required to be excluded as per the provisions of Section 12 of Limitation Act. Appellant neither at the time of praying for setting aside the exparte decree nor while moving the application under order 9rule 13 CPC has filed any proof for applying the certified copy or receipt of the same. Appellant has not filed any such certified copy obtained by him by moving such application. In the absence of any proof of filing of the application for certified copy, even filing of the certified copy, even for the sake of argument, the appellant is not RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:8 :
entitled for extension of period of limitation. Accordingly, this contention is also not tenable.
9. The expiry of the limitation period for filing an application gives rise to legal right in favour of opposite party to treat the order as binding between the parties and this legal right should not be light heartedly disturbed. The law of limitation is founded on public policy . Limitation Act is a substantive law and its provisions have to be adhered. After expiry of limitation period a valuable right accrues in favour of one party and such a right cannot be taken away lightely and in routine manner . The rights in favour of a party should not be disturbed at the instance of negligent litigant. The exhibit of liberal construction should not be such that it may ignore the public policy on which the law of limitation is based and thereby defeat the very purpose of law.
10.In the present case the appellant had failed to move an application for condonation of delay alongwith application u/s 9 rule 13 CPC before the ld. trial court. Application under order 9 rule 13 CPC was filed beyond the limitation period. The appellant has also failed to disclose any justified ground which warrant the condonation of delay in moving the application. The application of the appellant under order 9 rule 13 CPC was beyond the period of limitation from the date of decree and also RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.
:9 :
from the date of knowledge of the decree. There is no illegality and infirmity in the order passed by the ld. trial court. The order has been rightly passed by the ld. trial court appreciating the facts of the case and the same does not want any interference. Accordingly, the appeal filed by the appellant praying for setting aside the order dated 26.05.2011 passed by the Ld. trial court is dismissed. File be consigned to record room after completion of necessary formalities. Trial Court Record alongwith copy of this order be sent to the Ld. trial court.
Announced in open court Devender Kumar Jangala
dated 28.04.2014 ADJ/West/Delhi
28.04.2014
This order contains 9 pages and all pages are duly signed by me.
Devender Kumar Jangala ADJ/West/Delhi 28.04.2014 RCA No. 113/11 Pradeep Kumar Gupta vs Anil Kumar.