Delhi District Court
Delhi Administration vs Sh. Kirat Singh on 25 April, 2007
-1-
IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE : DELHI.
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RCA - 9/07
DATE OF INSTITUTION : 17/3/07
DATE OF DECISION : 25/4/07
IN THE MATTER OF :-
D D D D D D D D D D D D D
DELHI ADMINISTRATION,
THROUGH DIRECTOR OF EDUCATION,
5, SHAM NATH MARG, DELHI.
.....APPELLANT
VERSUS
1. SH. KIRAT SINGH,
2. SH. JAGAT SINGH,
3. SH. KISHAN SINGH
ALL S/O LATE SH. KARAN SINGH,
4. SH. NARESH SINGH(DECEASED)
S/O LATE SH. KARAN SINGH THROUGH LR's
a. SMT. KAILASH WIDOW
b. MS. SAPNA YADAV DAUGHTER
c. MS. MONIKA YADAV DAUGHTER
d. MST. MANISH YADAV SON
.....RESPONDENTS
Contd.....
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ORDER
F F F F F F F
1. The present appeal has been filed by appellant on 17/3/2007, impugning the first order dated 27/9/2006 and the second order dated 12/1/2007, passed by Ld. Civil Judge.
2. I have heard Ms. Bindiya Savara, Advocate, Ld. counsel for appellant, Sh. Devender Kumar Tyagi, Advocate, Ld. counsel for respondent no. 1, 2 & 4 to 8 and Sh. HKL Sehgal, Advocate, Ld. counsel for respondent no.9/DDA. Respondent no.3 Kishan Singh, reported already died about three years ago. I have given my considerable thought to the submissions put forth by Ld. counsel for parties, carefully perused the record, both the said impugned orders as well as trial court record.
3. Ld. counsel for respondent no. 1, 2 & 4 to 8 has relied on the following authority :-
Surinder Kumar Boveja V/s Commissioner of Wealth Tax 2006 (89) DRJ 240 (DB) Contd.....-3-
4. Ld. counsel for appellant has submitted that the Hon'ble High Court, while passing order dated 12/3/2007, observing that order on application u/o IX R- 13 CPC is appealable, has granted them time to file the present appeal. She has also submitted that land has been acquired. It is now public land and in case, respondents have any objection they can file the objections. The appellant had already made payment to DDA. She has submitted that Mr. Kohli, who was representing the appellant before Trial Court has already died and Sh. I.S. Saroha, whose name has been mentioned, when advance copy was supplied, was neither from the department nor counsel from the department. His attorney is also not on record. The inquiry in this regard is still pending.
5. Ld. counsel for respondent no. 1, 2 & 4 to 8 has submitted that even though the appeal has been filed u/s 96 of CPC, but it has to be considered u/s 104 of CPC. He has also referred to prayer clause of appeal and submitted that this appeal is only against order Contd.....
-4-dated 27/9/2006 and this appeal is not against order dated 12/1/2007. He has also submitted that ignorance of law is no excuse and Hon'ble High Court has given liberty condoning delay. He has submitted that the copy of notification filed on record, is the notification u/s 4 of Land Acquisition Act. Notification u/s 6 of Land Acquisition Act is also required and after that objections have to be filed u/s 9 & 10 of Land Acquisition Act. There is no impact of the notification on this appeal.
6. Ld. counsel for respondent no.9/DDA has submitted that under emergency provisions, the land has been acquired in this case.
7. I rely on following authorities :-
1. State of Nagaland versus Lipok AO & Ors.
2005(4) SBR 318 SUPREME COURT OF INDIA
2. Delhi Development Authority V/s. Dalip Kumar 137(2007) DELHI LAW TIMES 309
3. Smt. Shanti Devi versus Sh. Bhan Raj & Ors.
1990(18) DRJ DELHI HIGH COURT.
4. N. Balakrishnan v. M. Krishnamurthy 1998 SAR (Civil) 739 Supreme Court Contd.....
-5-
5. Union of India v. R.P. BUILDERS 57 (1995) DELHI LAW TIMES 337 (DB)
6. State of Haryana V/s Chandermani & Ors.
AIR 1996 SUPREME COURT 1623
7. Brij Indar Singh v. Kanshi Ram, ILR (1918) 45 Cal 94 (PC)
8. Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575.
9. Lala Matu Din vs. A. Narayanan 1969 (2) SCC 770
8. As regards the judgment titled N. Balakrishnan V/s M. Krishnamurthy (Supra), there was delay of 883 days which was condoned. In Para 11 of this judgment, it has been mentioned that :-
''It is axiomatic that 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. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay Contd.....-6-
of very long range can be condoned as the explanation thereof is satisfactory.''
9. In Para 15 of judgment titled N. Balakrishnan v.
M. Krishnamurthy (Supra), it has been observed that :-
''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 it 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. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.''
10. In Para 8 of the judgment titled Union of India V/s R.P. BUILDERS 57 (1995) DELHI LAW TIMES 337 (DB), it has been observed that :-
Contd.....-7-
''The above decisions of the Supreme Court clearly lay down that while the State cannot be treated differently from any other litigant, the Court is 'bound' to take into consideration the following factors''
(i) red-tapism in government,
(ii) delays in correspondence,
(iii) habitual indifference of government officials or government pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties;
(iv) collusion or negligence by government officials or government pleaders or fraud,
(v) damage to public interest or to public funds or interests of the State,
(vi) institutional or bureaucratic procedures as well as delays arising thereon, and
(vii) need to render substantial justice on merits.''
11. In the judgment titled State of Haryana V/s Contd.....-8-
Chandermani & Ors.(Supra), vide para 7 it has been observed in following words :-
''Experince shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal.
12. Vide para 10 of judgment titled State of Haryana V/s Chandermani & Ors. (supra), it is held that :-
''it is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court Contd.....-9-
- be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing and passing on the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents represents collective cause of the community. It is axiomatic that decisions are taken by officer/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, Contd.....
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therefore, be considered with
pragmatism in justice-oriented
approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatism approach in 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..................... 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.''
13. From the careful perusal of the authority relied by this court, i.e., State of Nagaland versus Lipok AO & Ors. (Supra). In Para 10 and 11 of this judgment, it has been opined by Hon'ble Supreme Court that :-
Contd.....-11-
''the proof of sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion.'' It has also been opined that :-
''What constitutes sufficient cause cannot be laid down by hard and fast rules.''
14. In Para 11 of this judgment, Hon'ble Mr. Justice Arijit Pasayat and Hon'ble Mr. Justice S.H. Kapadia, Judges, Supreme Court of India have referred to the two other cases, i.e., Brij Indar Singh v. Kanshi Ram, ILR (1918) 45 Cal 94 (PC) and Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575.
15. In Brij Indar Singh V/s Kanshi Ram (Supra), it has been observed that :-
Contd.....-12-
''true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.''
16. In Shakuntala Devi Jain v. Kuntal Kumari (Supra), a three judges Bench had held that :-
''unless want of bona fides 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.''
17. The judgment titled Lala Matu Din vs. A. Narayanan (supra) earlier referred in Para 12 of this judgment wherein the court had held that :-
''there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by Contd.....-13-
the counsel was bona fide and it was not tainted by any mala fide motive.''
18. In Para 17 of this judgment, the court has considered regarding conditions in government departments. It was a case where State of Nagaland had sought condonation of delay. It has been mentioned that :-
''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. Therefore, it has been mentioned that the expression ''sufficient cause'' should be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in the justice-oriented process.''
19. In Para 14 of the judgement, it has been Contd.....
-14-expressed that :-
''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.
20. In Para 4 of judgment titled Smt. Shanti Devi versus Sh. Bhan Raj & Ors.(supra) also Hon'ble Mr. Justice D.P. Wadhwa, the then Judge, Delhi High Court has discussed that :-
''the expression 'sufficient cause' in Section 5 of the Limitation Act, 1963 was adequately elastic to apply the law in a meaningful manner which subserves the ends of justice.'' Contd.....-15-
21. In judgment titled Delhi Development Authority v/s Dalip Kumar(supra), our own Hon'ble High Court has referred to various authorities and vide para 10 of this judgment it has held that :-
''Again, it is also well settled that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.''
22. It is pertinent to mention that in the appeal, the application has to be considered u/o XLI R-3A CPC for condonation of delay, but for such condonation also, the court has to satisfy regarding the sufficient cause for not preferring the appeal within the prescribed period. So, with regard to sufficient cause even the sufficient cause explained in section 5 of the Limitation Act, 1963 can be considered.
23. It is well settled proposition of law that if the Contd.....
-16-refusal to condone the delay, result in grave miscarriage of delay, it would be a ground to condone the dalay. Moreover, Section 5 of Limitation Act was enacted in order to enable the court to do substantial justice to the parties by disposing off the matter on merits. Similarly, the provision u/o XLI R-3A CPC, has to be read with expression ''sufficient cause'' which is adequately elastic to enable the court to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life purpose of the existence of the institution of courts.
24. Suit No.838/88 titled Kirath Singh etc. V/s Delhi Administration etc. was decreed by Ld. Civil Judge vide judgment/decree dated 06/9/2002. As per averments made in appeal, on 11/3/2006 when some persons claiming to be the owners of part of land falling within the boundary wall of Government Girls Senior Secondary School/Government Boys Senior Secondary School, SU Block, Pitam Pura, Delhi, entered the school premises with the help of local police and Contd.....
-17-started digging the land within the school boundary without any court order, simply on the pretext of judgment/decree dated 06/9/2002, passed by Ld. Civil Judge. At that time the appellant/defendant no.2 came to know about the order of Ld. Civil Judge for the first time. The appellant had filed an application u/o IX R-13 r/w Sec. 151 CPC dated 21/7/2006, on 21/7/2006 before Ld. Civil Judge. This application has been contested by decree-holder/Respondent no.2 Jagat Singh, who had signed the reply. The Ld. Civil Judge has dismissed this application u/o IX R-13 r/w Sec. 151 CPC vide impugned order dated 27/9/2006, i.e. the first impugned order.
25. The execution petition no.222/06 titled Jagat Singh V/s Delhi Administration etc. was filed by respondent no.2 Jagat Singh on 05/4/2006, which has not been signed, but verified by respondent no.2/Decree-holder Jagat Singh. In this execution petition objections have been filed u/o XXI R-26 & 58 r/w Sec. 151 CPC on behalf of present Contd.....
-18-appellant/defendant no. 1 & 2, Government of NCT of Contd.....
-19-Delhi and Directorate of Education. This application u/o XXI R-26 & 58 r/w Sec. 151 CPC has been dismissed vide order dated 12/1/2007, i.e. the second impugned order.
26. The appellant preferred writ petition against both the impugned orders, as per the submissions of Ld. counsel for appellant, on 9-10/3/2007. The CM(M) No.371/2007 has been dismissed on account of adequate alternative remedy, vide order dated 12/3/2007, passed by Hon'ble Mr. Justice Pradeep Nandrajog, Judge, Delhi High Court.
27. The order dated 12/3/2007, passed by Hon'ble Mr. Justice Pradeep Nandrajog, Judge, Delhi High Court, in CM(M) No.371/2007 reads as under :-
12/3/2007 Present : Mr. V.K. Tandon for the petitioner.+CM(M) No.371/2007
1. Impugned order dated 27th September, 2006 has dismissed petitioner's application under Order 9 Rule 13 CPC.
Contd.....
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2. The order is an appealable order.
3. The present petition is accordingly dismissed on account of adequate alternative remedy.
4. Needless to state, remedy of the petitioner is to file an appeal before the Senior Civil Judge in as much as the order impugned has been passed by a Civil Judge.
5. Dasti under the signatures of the Court Master.
March 12, 2007
vg Sd/-
PRADEEP NANDRAJOG, J.
28. The copy of order placed as annexure 7 along with appeal does not disclose the title/names of the parties, however, it is clear that this order pertain to impugned order dated 27/9/2006, regarding dismissal of application u/o IX R-13 CPC. This order nowhere gives liberty to the appellant for filing the present appeal. It just make it clear to the petitioner/appellant that impugned order dated 27/9/2006, regarding dismissal of Contd.....
-21-application u/o IX R-13 CPC is an appealable order and petition was dismissed on account of adequate alternative remedy. It also mentions that the remedy is to file an appeal.
29. It is also clear from the order dated 12/3/2007, passed by Hon'ble Mr. Justice Pradeep Nandrajog that this order is not regarding the second impugned order dated 12/1/2007, vide which the application u/o XXII R- 26 & 58 r/w Sec. 151 CPC was dismissed. It is also clear from the provision of order XLIII R-1 CPC that this order is not an appealable order.
30. After dismissal of CM(M) No.371/07 on 12/3/2007, by Hon'ble Mr. Justice Pradeep Nandrajog the present appeal along with an application u/s 5 of Limitation Act has been filed on 17/3/2007. The facts regarding delay in filing the appeal has been averred in para 2 of the application u/s 5 of Limitation Act dated 17/3/2007, which reads as follows:-
Contd.....-22-
''........
2. That the order was passed by Learned Civil Judge, on 27/9/2006 in Suit No.838 of 1988 and the order dt.
12/1/2007 in Execution No.222 of 2006, however, after the passing of the order dt. 27/9/2006 the department was in bonafide impression to get decide objections filed by Ld. Civil Judge, Delhi, which were dismissed by Ld. Civil Judge on 12/1/2007, afterwards the matter was taken up at higher level and ultimately appellant/department went to Hon'ble High Court and petition under Article 227 of Constitution of India was filed, which was disposed of on 12/3/2007 on account of adequate alternative remedy to file an appeal before Senior Civil Judge, hence, the present appeal before this Hon'ble Court. It is further submitted that due to Administrative reasons and also what course of action to be initiated took certain time at higher level hence delay in filing the present appeal.''
31. The perusal of this application shows that after passing of the first impugned order dated 27/9/2006, as per averments made in this application, the department was in bonafide impression to get decided objections filed before Ld. Civil Judge, which were dismissed by second impugned order dated 12/1/2007. After passing Contd.....
-23-of this second impugned order, the matter was taken up at higher level and ultimately the appellant department went to Hon'ble High Court and petition under Article 227 of Constitution of India was filed which was disposed off on 12/3/2007. Actually as per perusal of order dated 12/3/2007 the petition was dismissed. It cannot be considered that under bonafide mistake the appellant has preferred the writ petition under Article 227 of Constitution of India against first impugned order dated 27/9/2006, vide which an application u/o IX R-13 CPC was dismissed. The first impugned order is clearly an appealable order, which has been ordered by Hon'ble High Court vide order dated 12/3/2007.
32. The reasons explained in the application u/s 5 of Limitation Act are not sufficient in order to explain as to what were the circumstances, which compelled the appellant for filing the present appeal. Even copy of writ petition has not been filed and the order dated 12/3/2007 mentions regarding first impugned order dated 27/9/2006, as appealable order. There is no Contd.....
-24-explanation, what to talk of satisfactory explanation for not taking steps from 27/9/2006 i.e. the date of passing of first impugned order, till the passing of second impugned order on 12/1/2007. Even after passing of the second impugned order dated 12/1/2007, the appellant department had mentioned that matter was taken up at higher level as appellant preferred petition under Article 227 of Constitution of India. No explanation has been given for taking so much time even in filing the writ petition. No specific date of filing of writ petition has been disclosed. On putting query by the court during the course of arguments, Ld. counsel for appellant told that it was 9/10.3.2007, when the writ petition was filed. Nowhere it has been explained as to why both the impugned orders have been dealt with in the writ petition preferred by the appellant after passing of the second impugned order. The order passed by Hon'ble High Court on 12/3/2007, mentions only regarding order dated 27/9/2006, dismissing petitioner application u/o IX R-13 CPC. In para 2 of this order it has been mentioned that this order is an appealable order.
Contd.....
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33. It is clear that sufficient cause has not been explained for delay in filing the appeal. Liberty has not been granted by the Hon'ble High Court and even delay has not been condoned by the Hon'ble High Court for filing the present appeal. The delay as mentioned above has not been explained properly. It is well settled proposition of law that it is not the period of delay which has to be consider while deciding the application, but sufficient reasons have to be explained. There should be sufficient cause, which has to be explained by appellant/applicant, which compelled him from filing of the appeal after lapse of period of limitation.
34. Nothing has been brought on record in order to show bonafide of inaction or negligence on the part of appellant. It is not known how for the appealable order i.e the first impugned order the appellant preferred the writ petition. This petition was also preferred after expiry of period of limitation of appeal with respect to first impugned order dated 27/9/2006.
Contd.....
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35. In view of the above-said discussion, it is clear that even though, court has to adopt liberal approach in examining the circumstances, which prevented the appellant in not preferring the appeal in time and even in the recent judgment of our own High court titled DDA V/s Dalip Kumar(supra), it is clear that liberal approach has to be adopted, but at the same time the applicant/appellant/even the government authorities, should not be given the clean chit to the fact that whatever may be the reason come, what may the delay will definitely be condoned. Even if the government machinery is concerned, they are also supposed to explain the sufficient cause.
36. In the instant case, I am of the considered view that as discussed in preceding paras, the sufficient cause has not been explained and the delay cannot be condoned. Therefore, the present application u/s 5 of Limitation Act is devoid of merits, hence dismissed.
37. Since, admittedly the appeal is time barred, Contd.....
-27-hence, appeal is also dismissed. Copy of this order be sent along with TCR.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 25th April, 2007 (PINKI)
Additional District Judge,
Delhi.
Contd.....
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Contd.....