Delhi District Court
Akhileshwar Pathak vs Baba Ramesh Nath & Anr on 11 December, 2014
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
RCA No. 87/14
Akhileshwar Pathak
..... Appellant
Vs.
Baba Ramesh Nath & Anr.
..... Respondents
O R D E R
1. Vide this order I shall dispose of an application u/s 5 of Limitation Act moved by the appellant.
2. It is stated in the application that impugned judgment and decree was passed on 30.11.2013 and its certified copy was applied on 16.12.2013 as the appellant had gone to Bihar to participate in some religious ceremony. The certified copy was ready for delivery on 18.12.2013 and as such appeal should have been filed on or before 02.01.2014. It is stated that appellant has given instructions to the present counsel on 15.12.2013 through telephone to draft the appeal but appeal could be ready only on 29.12.2013 when the present counsel returned back after winter vacation, but unfortunately the appellant fell ill on 30.12.2013 and could not sign the appeal. The RCA No. 419/12 Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 1 of 5 appellant got recovered from his illness on 13.01.2014 and immediately thereafter the present appeal was filed. It is stated that there is delay of 13 days in filing the appeal which is neither intentional nor malafide but due to the aforesaid reasons and hence it has been prayed that delay of 13 days in filing the appeal may be condoned.
3. The respondent no. 1 has opposed the application by filing reply contending that the application is based only on a medical certificate which is a procured document and no medical prescription has been placed on record. It is further contended that delay in filing the appeal is deliberate and same cannot be condoned. The respondent no. 1 has prayed for dismissal of the application.
4. The respondent no. 2 has not filed any reply to the application and the Ld. Counsel for respondent no. 2 has argued straightaway.
5. I have heard the Ld. Counsel for the parties and perused the record carefully.
6. The present appeal has been filed against the impugned judgment and decree dated 30.11.2013 passed by Ld. Civil Judge11 (Central), Tis Hazari Courts, Delhi on 15.01.2014, while same should have been filed on 02.01.2014 and as such there is delay of 13 days in filing the appeal. The aforesaid delay is sought to be condoned by the RCA No. 419/12 Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 2 of 5 appellant on the ground that he could not sign the appeal in time as he fell ill. In support of this contention, medical certificate has also been placed on record by the appellant. Though, the respondent no. 1 has contended that the medical certificate filed by the appellant is procured one as no prescription slip has been filed by the appellant. But, the appellant has also placed on record the prescription slip of the doctor dated 30.12.2013. Therefore, there is no merit in the contention of the respondent no. 1 that medical certificate filed by the appellant is procured one.
7. The Ld. Counsel for respondent no. 1 has also raised an objection that there is not only 13 days delay in filing the present appeal but the appeal is also delayed by 185 days as same has been filed before this court on 08.07.2014 and the appellant has not sought any condonation of said delay and hence the appeal is liable to be dismissed.
8. On the other hand, Ld. Counsel for appellant argued that appeal was initially filed before the Ld. District Judge (Central) as the impugned judgment and decree was passed by Ld. Civil Judge (Central) and thereafter due to bifurcation of district courts, the appeal was returned by the Ld. ADJ (Central) vide order dated 29.04.2014 to be presented before the Ld. District Court (South East District) and the appeal was presented before the Ld. District & RCA No. 419/12 Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 3 of 5 Sessions Judge (South East District) before the time fixed by the Ld. ADJ (South) and hence there is no delay in filing the appeal after being returned by the Ld. ADJ (Central) vide order dated 29.04.2014.
9. Perusal of the record reveals that the appellant has preferred the present appeal against the impugned judgment and decree dated 30.11.2013 on 15.01.2014 before the Ld. District Judge (Central) and it was assigned to Sh. Sunil Chaudhary, Ld. ADJ16 (Central), Tis Hazari Courts, Delhi and the said court vide its order dated 29.04.2014 found that court lacks territorial jurisdiction to entertain the appeal as after the division of Delhi into 11 judicial districts, the area where the suit property is situated falls within the jurisdiction of South East District. Hence, the ADJ (Central) vide order dated 29.04.2014 returned the appeal to the appellant to be filed before District Court (South East) for 28.05.2014. However, at the request of the Counsel for appellant the date of presentation of appeal was changed to 08.07.2014.
10. Perusal of the record further reveals that present appeal was filed before the Ld. District & Sessions Judge (South East District) on 03.06.2014, but in view of the fact that ADJ (Central) vide order dated 29.04.2014 fixed the date of presentation of appeal on 08.07.2014, the present appeal was assigned by the Ld. District & Session Judge (South East) on 08.07.2014 to this court. The appellant RCA No. 419/12 Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 4 of 5 has preferred the present appeal before the Ld. District Judge (Central) on the belief that the impugned judgment and decree has been passed by the Civil Judge (Central) and, therefore, appeal there against would lie to the Ld. District Judge (Central). Though after division of Delhi into 11 districts, the appeal was to be filed before the Ld. District Judge (South East) as the property in question fell within the territorial jurisdiction of South East district. Therefore, if the appeal was filed before the Ld. District Judge (Central), it cannot be said that same was filed malafidely to cause delay as the appellant did not stand to gain anything by filing the appeal before the wrong forum. The appellant was not required to seek condonation of period during which the appeal was lying before the Ld. ADJ (Central), Delhi. Hence, I do not find any merit in this contention of the Ld. Counsel for respondent no. 1 and same is hereby rejected.
11. Considering the averments made in the application and the medical certificate of the appellant, the application is allowed and delay of 13 days in filing the appeal is hereby condoned.
Announced in open Court (Balwant Rai Bansal)
on 11th December, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
RCA No. 419/12
Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 5 of 5
RCA No. 419/12
Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr
11.12.2014
Present: None for the appellant.
Respondent no. 1 in person.
Vide my separate order of even date, the application moved by the appellant u/s 5 of Limitation Act seeking condonation of delay in filing the appeal is allowed.
Now, to come up for arguments on the appeal on 12.01.2015.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 11.12.2014 RCA No. 419/12 Akhileshwar Pathak Vs. Baba Ramesh Nath & Anr. Page 6 of 5