Delhi District Court
Mahavir Prasad vs Sh. Baljeet Singh on 2 December, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADDITIONAL DISTRICT JUDGE-3 (NORTH) : DELHI
RCA No. : 49/11
Unique Case I.D. No. : 02401C0482522011
In re:
1. Mahavir Prasad
S/o Sh. Ram Chander
R/o Village & Post Office Mithapur,
Badarpur, New Delhi-110044. Appellant
Versus.
1. Sh. Baljeet Singh
S/o Sh. Patram
R/o Village & Post Office Mithapur,
Badarpur, New Delhi-110044.
2. Sub-Registrar
Sub-Registrar Office
Asaf Ali Road, New Delhi. Respondents.
APPEARANCE:
Sh. K.B.B. Singh, Counsel for the appellant.
Sh. D.R. Tomar, Counsel for the respondent no. 1.
None for respondent no. 2.
O R D E R :-
1. Vide this order, I shall dispose off an application u/o 41 Rule 3A (1) CPC r/w section 5 of the Limitation Act for condonation of delay in filing of the appeal bearing RCA No. 49/11, vide which the judgment of the Ld. Trial Court dated 28.07.2011 has been challenged.
2. Vide the instant application, it has been stated that the plaintiff / appellant has filed a suit for permanent injunction, declaration and RCA No. 49/11 1 / 6 cancellation of documents before the Ld. Trial Court, which was dismissed by the Ld. Trial Court vide the judgment / decree dated 28.07.2011. The appellant applied for the certified copy of the judgment / decree, which was received by him on 10.08.2011. However, the appellant was suffering from severe sciatica pain due to which he was unable to approach his advocate, as he went to Mathura for his treatment. It was stated that the appellant has sufficient grounds to succeed in the appeal and it was prayed that the delay of 65 days in filing of the appeal be condoned.
3. The reply to the application was filed on behalf of the respondent, wherein the preliminary objections were taken that there is no sufficient cause shown by the appellant for condonation of delay in filing of the appeal. The delay is extraordinary and has not been explained on day by day basis, as is required. It is stated that no medical documents have been filed by the appellant to substantiate his assertion that he was actually under treatment of any doctor and had actually gone to Mathura for the said treatment. It was prayed that the instant application as well as the appeal be dismissed with costs.
4. I have heard Sh. K.B.B. Singh, counsel for the appellant and Sh. D.R. Tomar, counsel for respondent, perused the record and considered the rival contentions of both the parties.
5. Before proceeding further it would not be out of place to reproduce here Order 41 Rule 3A (1) CPC and section 5 of the Limitation Act :
3A. Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the factson which the appellant relies to satisfy the Court that he had RCA No. 49/11 2 / 6 sufficient cause for not preferring the appeal within such period."
2. .....
3. .....
Section 5 of The Limitation Act.
5. Extension of prescribed period in certain cases.- Any appeal of any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 ( 5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
6. The scope of section 5 of the Limitation Act has been discussed and interpreted in catina of judgments of the Hon'ble High Court and Hon'ble Apex Court. In Ramlal and others V. Rewa Coalfields Ltd., AIR 1962 SC 361 (V 49 C 56), while discussing the scope of section 5 of the Limitation Act, the Hon'ble Apex Court has held that :
" In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed."
7. In M/s Democratic Builders V. Union of India, AIR 1993 DELHI 132, it has been held by the Hon'ble High Court that in an application for condonation of delay, when no sufficient and cogent reason has been given and the delay has not been explained day by day, the delay is not liable to be condoned.
RCA No. 49/11 3 / 68. The scope has been very aptly and lucidly discussed by the Hon'ble High Court in South India Shipping & Export Co. Vs. Tribal Cooperative Marketing Development Federation of India Ltd. in CM No. 15337/2010 (delay) & FAO(OS) No. 537/2010, decided on 20.12.2010, wherein their lordships have observed that :
"The courts normally do not throw away the meritorious lis on hyper-technical grounds. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit."
It has further been observed that :
"Principles enunciated for condonation of delay are well settled. Expression 'sufficient cause' should be given liberal interpretation so as to advance substantial justice between the parties. (Balwant Singh Vs. Jagdish Singh (2010) 8 SCC 685; State of Karnataka Vs. Y. Moideen Kunhi (Dead) By LRs and Others (2009) 13 SCC 192; Ram Nath Sao Vs. Gobardhan Sao (2002) 3 SCC 195; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123; G. Ramegowda, Major and Others Vs. Special Land Acquisition Officer, Bangalore and Basavalingappa Vs. Special Land Acquisition Officer, Bangalore (1988) 2 SCC
142). It is not the length of delay which is material for condonation of delay in filing an appeal but the acceptability of the explanation. There may be cases where a few months' delay may not be condoned as an applicant has no reasonable explanation to offer for the same,yet there are RCA No. 49/11 4 / 6 cases where delay of several years has been condoned.
....
"The law that each day's delay must be explained has mellowed down yet it has to be shown by the applicant that there was neither any gross negligence nor any inaction, nor want of bonafides."
9. Guided by the said principles enunciated in the aforementioned judicial pronouncements by the Hon'ble Supreme Court and reiterated by the Hon'ble High Court, when the case in hand is reverted back to, it is found that except a one line mentioning that the appellant was suffering from sciatica pain, no reason to explain the delay has been forthcoming. The appellant has neither filed any medical document nor his travel tickets, which would show that he had gone to Mathura for any treatment or for how many days he remained under treatment, if any.
10. It is very clear from the judicial pronouncements mentioned supra, that the delay of the period for which condonation is being sought for, has to be explained day by day by the appellant but in the instant case, other than a vague and unsubstantiated assertion about the appellant's suffering from sciatica pain, no other explanation has been furnished on record. Their Lordships have already opined in clear and unambiguous words that there was a motive behind the Legislature for incorporating provisions of Limitation Act for condonation of any delay but discretion for condonation is to be exercised by the court judiciously, when the delay is so cogently explained day by day that it becomes apparent that the appellant could not have filed the appeal within limitation, despite exercise of due diligence by him. The instant case definitely does not fall under such category and the delay in filing of the appeal appears to be whimsical and only due to lethargy and such a conduct of the appellant cannot be condoned.
RCA No. 49/11 5 / 611. Accordingly, I find no merit in the application u/o 41 Rule 3 A (1) CPC r/w u/s 5 of the Limitation Act for condonation of delay in filing of the appeal. The said application for condonation of delay as well as the appeal are accordingly dismissed. No orders as to costs.
Copy of the order be placed in the appeal file, which be consigned to Record Room.
Announced in open Court (SEEMA MAINI)
today i.e. on 02.12.2011 ADJ-03(North)Delhi
RCA No. 49/11 6 / 6