Delhi District Court
M/S Telecommunications Consultants ... vs Ram Narayan on 1 August, 2015
IN THE COURT OF SH. RAJNISH BHATNAGAR; ADJ (CENTRAL)-11,DELHI
RCA No. : 33/2011
M/s Telecommunications Consultants India Ltd.
.......Appellant
vs.
Ram Narayan
.....Respondent
ORDER
1. By this order, I shall dispose of an application filed by the appellant U/o 41 Rule 3-A read with section 151 CPC for condonation of delay in filing of the appeal.
2. The appellant has filed the appeal against the judgment dated 31-10-2008, and according to the appellant there is a delay of 105 days in filing the appeal. It is averred in the application by the appellant that after pronouncement of the judgment dated 31-10-2008, the appellant applied for certified copy of the judgment on 8-12-2008, which was delivered to the appellant on 17-01-2009. It is further averred that the appellant thereafter withdrew the file from the previous counsel and send it to new counsel which took considerable time. It is further averred that there was a change in the office staff of the advocate and therefore the file was misplaced in the office of the advocate and could only be traced lateron. It is averred that the delay in filing the appeal is neither deliberate nor intentional. It is further averred that the appellant has a very good case on merits and there is every likelihood of the appellant's success in the appeal. The application is supported by the affidavit of Sh. K. Raghavan who is the Company Secretary of the appellant.
3. The application has been contested by the respondent by filing his RCA No. : 33/2011 Page no. 1 /9 reply. In reply the respondent has taken various preliminary objections contending therein that : the appellant has failed to show sufficient cause which prevented the appellant from filing the appeal; that the application is abuse of the process of law.
4. On merits, it is stated that the appellant has cooked up a false story and there is not an iota of truth in it. It is further stated that the withdrawing of the case from one counsel and handing over to the other counsel is of no consequence to the rights of the Respondent/Decree Holder to get the benefits of the decree to recover the legitimate dues from the appellant. It is further stated that all the averments made in the application are vague and false. It is further stated that the appellant is an undertaking having backing of law officers maintaining the records of the case so there were no reasons which were beyond the control of the appellant which prevented the appellant from filing the appeal within the period of limitation. It is submitted that the appeal is devoid of merits and there is no infirmity in the impugned judgment of the Ld. trial Court.
5. The appellant has filed the rejoinder and denied that the application U/o 41 Rule 3-A CPC filed on behalf of the appellant is based on false and concocted version. It is submitted that the case was conducted by some other advocate and due to lack of diligence in the office of the said advocate there has been delay in applying the certified copy of the impugned judgment. So being unsatisfied with the earlier counsel the appellant was compelled to change the advocate and the change of lawyer is itself is a difficult decision but the appellant had no option. It is submitted that due to change in the staff of the present advocate the file of the appellant was misplaced in the office of the advocate and could be traced only lateron. Therefore some time was consumed in preparing the appeal. It is submitted that the delay is neither deliberate nor intentional. It is further submitted that a similar case has been admitted RCA No. : 33/2011 Page no. 2 /9 and is pending in the Hon'ble High Court of Delhi captioned as Pawan Kumkar & Ors. Vs. Union of India in W.P. (C) No. 1240/07. So in this view also the application deserves to be allowed. It is further submitted that there was no default on the part of the appellant in filing the appeal in time and in case the delay is not condoned then it will be highly prejudicial to the interest of the appellant.
6. I have heard the counsel for the parties and perused the records of this case.
7. It is submitted by the counsel for the appellant that the appellant has a very good case on merits and if the delay is not condoned it will amount to gross miscarriage of justice. It is further urged that the superior courts have opined in numerous judgments that the Courts should have liberal approach in the cases where the condonation of delay has been sought. It is further urged by the counsel for the appellant that there was no negligence on the part of the appellant in not filing the appeal in time and the appellant would not have gained anything by not filing the appeal in time. It is further urged that a similar case has been admitted by the Hon'ble High Court which shows that the case of the appellant has merits and in case the delay is not condoned the appellant will be highly prejudiced. The counsel for the appellant has relied upon Balakrishnan Vs. M. Krishna Murthy, (1998) 7 SCC 123 and O.P. Kathpalia Vs. Lakhmir Singh, AIR 1984 SC 1744.
8. On the other hand, it is urged by the counsel for the respondent that the appellant has failed to show any "sufficient cause" for condoning the delay. It is further urged that even the appeal filed by the appellant lacks merits. It is further urged by the counsel for the respondent that the entire story put forth in the application for condonation of delay is false and concocted with vague and unfounded averments. The counsel or the respondent has relied upon Pundlik Jalam Patil (D) by LRs. Vs. Exe. Eng. Jalgaon Medium Project & Anr. JT 2008 (11) RCA No. : 33/2011 Page no. 3 /9 SC 596 and Ajit Singh Thakur and another Vs. State of Gujrat 1981, Criminal Law Journal 293.
9. In N. Balakrishnan Vs. M. Krishnamurthy "supra" it has been held as follows :
"13 It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or its is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. ......."
10. In Shankuntla Devi Jain Vs. Kuntal Kumari [1969] 1 SCR 1006, the bench of 3 Judges of the Hon'ble Supreme Court held that:
"Unless want of bonafides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned."
11. In State of West Bengal Vs. The Administrator, Howrah, Municipality, [1972] 2 SCR 874 A it has been held as follows :
"A Court knows that refusal to condone delay would result in foreclosing RCA No. : 33/2011 Page no. 4 /9 a suitor from putting forth his cause.
There is no presumption that delay in approaching the court is always deliberate.
This Court has held that the words
"sufficient cause" Under Section 5 of the
Limitation Act should receive a liberal
construction so as to advance substantial
justice."
12. In New India Insurance Company Limited Vs. Shanti Mishra [1976] 2 SCR 266 the Hon'ble Supreme Court held that :
"Discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should received a liberation construction."
13. In Brij Indar Singh Vs. Kashi Ram (1917) 19 BOMLR 866 it was observed as follows :
"true guide for a court to exercise the discretion U/s 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal."
14. In Concord of India Insurance Co. Ltd. Vs. Nirmala Devi [1979] 118 ITR 507 (SC) which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the Hon'ble Supreme Court condoned the delay.
15. In O.P. Kathpalia Vs. Lakhmir Singh, AIR 1984 SC 1744 a bench of 3 judges of the Hon'ble Supreme Court had held that :
"If the refusal to condone the delay results in grave miscarriage of justice, it RCA No. : 33/2011 Page no. 5 /9 would be a ground to condone the delay."
16. In Collector Land Acquisition V. Katiji [1987] ILLJ 500 SC a bench of 2 judges of the Hon'ble Supreme Court considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaning full manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
17. In G. Ramegowda Major V. Spl. Land Acquisition Officer [1988] 3 SCR 198, it was held that :
"No general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction RCA No. : 33/2011 Page no. 6 /9 so as to advance substantial justice and generally the delays in preferring the appeals are required to be condoned in the interest of injustice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay."
18. In State of Nagaland Vs. Lipok AO and Ors. AIR 2005 SC 2191 it was held as follows :
It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature.
Therefore, certain amount of latitude is not
impermissible. If the appeals brought by the
State are lost for such default no person is
individually affected but what in the ultimate
analysis suffers, is public interest. The
expression "sufficient cause" should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The facts which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in RCA No. : 33/2011 Page no. 7 /9 justice - oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases required adjustment and should authorize the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
19. In Radha Krishna Rai Vs. Allahabad Bank & Ors (2000) 9 SCC 733 a delay of 1418 days in preferring the appeal was condoned by the Hon'ble Supreme Court on the ground that the appellant was misguided by her counsel and was victim at the hands of her counsel.
20. There is no dispute to the preposition of law laid down in the judgment relied upon by the counsel for the respondent. The appellant has challenged the impugned judgment dated 31-10-2008. In brief the RCA No. : 33/2011 Page no. 8 /9 respondent according to the appellant was employed as a Daily Rated Majdoor in Telephone Exchange Gurgaon. He applied to T.C.I.L for deputation in connection with execution of project in Mauritius and remained on deputation from 8-3-1994 to 4-12-1995 in Mauritius. The respondent had instituted a suit for recovery of Rs. 91015/- due from the appellant for the services provided by the respondent on the foreign project. According to the appellant the respondent was not allowed any home salary while he was on deputation which was the existing practice adopted by the appellant company.
21. The impugned judgment according to the appellant made the appellant liable for payment of home salary for the period from 8-3-1994 to 4-12-1995 alongwith other allowances. So in the instant case, the public money is involved and the explanation given by the counsel for the appellant for condoning the delay does not smack of any deliberate "inaction" or "negligence". In the judgments "supras" the Hon'ble Supreme Court has time and again held that the Court should be liberal in condoning the delay and it has also been held that if in a particular case there are chances of miscarriage of justice then also the delay can be condoned. It has also been held that though there is no difference between a private litigant and the Government but due to certain reasons some latitude may be given to the Government but it has been subject to some riders.
22. In the present case there is a delay of 105 days which according to me has been successfully explained and cannot be said to be gross "negligence" on the part of the appellant. The application for condonation of delay is therefore allowed subject to cost of Rs. 1000/- and the delay is condoned. Now put up for disposal of the appeal on 10-09-2015.
Announced in the open court (RAJNISH BHATNAGAR)
On 01.08.2015 Additional District Judge
Delhi
RCA No. : 33/2011 Page no. 9 /9