Delhi District Court
Sh. Murari Lal vs Sh. Sant Ram & Anr on 22 April, 2014
IN THE COURT OF SH. NAVEEN ARORA
ADJ-06: SOUTH DISTRICT: NEW DELHI
RCA No. : 08/14
Sh. Murari Lal .... Appellant/ Plaintiff
vs.
Sh. Sant Ram & Anr. .... respondent/ defendant
Order on application u/o 6 Rule 17 r/w section 151 CPC for amendment of the application under section 5 of Limitation Act r/w Order XLI Rule 3A and section 151 CPC for condonation of delay moved on behalf of the Appellant.
22.04.2014 Vide this order I shall dispose off the above mentioned application moved on behalf of the Appellant.
As per the Appellant, he sought condonation of delay of 108 months and 210 days in filing the present appeal due to the filing of the appeal in a wrong forum in the Hon'ble High Court of Delhi, where the Appellant's appeal was filed on 28.07.2003 and withdrawn on 11.04.2012. The period spent in prosecuting the said appeal is 104 months and 15 days. The appellant is entitled to the exclusion of this period of 104 months and 15 days on the basis of provision of section 14 of Limitation Act, 1963. The period of 104 months and 15 days has to be excluded from the total period of 9 years 5 months and 10 days. Hence, the actual delay in filing the present appear is only of 8 months and 25 days. The appellant want to amend the prayer which is instead of period of "108 months and 210 days should read as "8 months and 25 days".
It is further submitted that aforesaid amendments are necessary in the application and in the interest of justice the aforesaid amendment in the application will not change the nature of the present application and will also not setup a new ground and no prejudice will be caused to the respondents if the amendments sought in the application are allowed.
Respondent filed reply to the said application and denied the contents of application stating that the contents are traversed, false, frivolous, mischievous the delay that occurred in the filing of the present appeal in wrong forum namely in the Hon'ble High Court of Delhi where the plaintiff's appeal was filed on 28.07.2003 and withdrawn on 11.04.2012 as alleged and the period spent in prosecuting the said appeal is thus 104 months and 15 days. The law of limitation put specific bar where the party causing delay can not given any reasonable cause for the delay so caused which is specifically apparent from the conduct of the party as due to his own mistake, negligent attitude and that too without any documentary proof or otherwise and thereafter the arguments relating to condonation of delay were addressed in the entire reply and the law relating to Section 14 of Limitation Act, which need not be reproduced herein being irrelevant at this stage of deciding the amendment application and on the above mentioned ground prayed for dismissal of the application.
I have heard the arguments and have perused the record. In the present case, an appeal U/s 96 CPC was preferred against the impugned judgment/decree dated 05.06.2003 passed by Sh. Anand Swaroop Aggarwal, the then Ld. Civil Judge, Tis Hazari Courts, Delhi against which an appeal was filed before Hon'ble High Court on 28.07.2003 by the Appellant/ applicant through their previous Counsel Sh. Ranjit Singh, Advocate which was later on withdrawn on 11.04.2012 i.e. after more than 9 years. Thereafter present appeal was filed on 09.01.2013 alongwith an application U/s 5 of Limitation Act r/w order 41 Rule 3(A) CPC explaining as to what took the appellant to file the present appeal after about 8 months and 28 days of withdrawing the appeal from Hon'ble High Court of Delhi but without mentioning the provision of Sec.14 of Limitation Act. Vide present application, the appellant had sought amendments of the application for condonation of delay and he wants to include the arguments relating to Section 14 of Limitation Act in addition to previous grounds..
I have heard the arguments and have perused the record. As far as the application U/o 6 Rule 17 CPC is concerned, I do not see any reason for disallowing the application as it is only seeking to include the arguments/reasoning relating to provision of Section 14 of Limitation Act in his application U/Sec. 5 R/w order 41 Rule 3(A) CPC which in my opinion are legal arguments and can always be considered even without pleadings. I allow the present application in the interest of justice subject to cost of Rs.3,000/ for causing delay in the proceedings.
Announced in Open Court (NAVEEN ARORA)
on 22nd April- 2014 ADJ-06: South: Saket
New Delhi
IN THE COURT OF SH. NAVEEN ARORA
ADJ-06: SOUTH DISTRICT: NEW DELHI
RCA No. : 08/14
Sh. Murari Lal .... Appellant/ plaintiff
vs.
Sh. Sant Ram & Anr. .... respondent/ defendant
Order on application u/sec.14 & 5 of Limitation Act r/w Order XLI Rule 3A and section 151 CPC for condonation of delay in filing the above mentioned appeal 22.04.2014 Vide this order I shall dispose off the above mentioned application moved on behalf of the appellant.
It is submitted on behalf of appellant that he had filed a suit for possession in respect of property bearing No. D1/183, Madangir, New Delhi bearing Suit No.36/2002/1999 which was dismissed vide impugned judgment dated 05.06.2003. The Appellant preferred an appeal against the said judgment before Hon'ble High Court of Delhi on 28.07.2003( within limitation period) through their then Advocate Sh. Ranjit Singh, though, it should have been filed before Ld. District Judge. The mistake was realized by the counsel and he finally withdrew the appeal i.e. RFA No.634/03 and the appeal was dismissed as withdrawn on 11.04.2012. As per appellant the period upto 11.04.2012 i.e. 104 months and 15 days are liable to be excluded from the limitation period U/Se.14 of the Limitation Act, 1963, as he was prosecuting the appeal in good faith before the wrong forum.
After withdrawal of appeal, an application was filed U/Sec.151 CPC i.e. CM NO.7477/12 by the applicant for withdrawal of original documents attached with the appeal which was dismissed by the Registrar (O) vide his order dated 11.05.2012 stating that documents are lying in Trial Court and liberty was given to the applicant to file fresh application before the Ld. Trial Court. The previous counsel did not return the entire paper book despite repeatedly asking and finally appellant had to issue a letter dated 12.07.2012 to him for returning of the paper book which was refused by him and having no other option the plaintiff engaged the services of another counsel Sh. Surjit Singh, Advocate who moved an application dated 05.11.2012 before Incharge, Record Room, Tis Hazari for release of original documents which was received by him on 08.11.2012. The counsel also obtained certified copies of Trial Court record in between i.e in the month October 2012.
Thereafter, plaintiff contacted new counsel Sh. Rajiv Sexana, advocate in the first week of December 2012 and copy of the entire file could be supplied to him in the middle of December 2012, who after going through the entire file, told that the earlier appeal was improperly filed by the previous counsel.
It is submitted that the lapses on the part of counsel for the appellant should not become the basis of dismissal of appeal on the ground of limitation and rights of plaintiff should not be prejudiced on this account. It is submitted that rules of limitation are not meant to destroy the rights of the parties as it is founded on public policy and even some lapses on the part of litigants are not sufficient to refuse to condone the delay as it can result in miscarriage of justice. It is submitted that expression sufficient cause is adequately elastic to enable the court to do substantial justice and merely on technical grounds the same cannot be denied to the parties. It is submitted that negligent on the part of the counsel cannot be made the ground to deny justice to the party and no straight jacket formula can be prescribed to found out as to whether grounds are sufficient or not. It is submitted that appellant is 4th class passed and belongs to poor stata of the society and absolutely have no knowledge of technicalities of law and was dependent wholly upon his counsel, hence this application for seeking condonation of delay of 8 months and 25 days i.e from 12.04.2012 to 08.01.2013.
Reply to this application ( not to the amended application but to the original application) was filed by the respondent/ defendant stating that the present appeal has been filed after the lapse of statutory period of limitation and same is highly time barred. No sufficient cause has been disclosed for condonation of delay and no documentary proof of the averment made in the application have been placed on record. It is submitted that this appeal is not maintainable as the appellant had not obtained the liberty from the Hon'ble High Court to file fresh appeal after withdrawal of the first appeal and it was a simple withdrawal without assigning any reason. It is submitted that appellant seems to be negligent in his conduct. It is submitted that rules of limitation are also not meant to prolong the proceedings at once own terms and negligent conduct and led the other party be constantly suffered for the acts of another. It is submitted that once a valuable rights accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice could be achieved. It is submitted that if a party has been thoroughly negligent in impleadings its rights and justice, it will be equally unfair to deprive another party of a valuable rights that has accrued in law as a result of his acting vigilantly.
I have heard the arguments and have perused the record. From all the above mentioned facts and circumstances, it is clear that plaintiff/ appellant after dismissal of his suit was pursuing his appeal for 9 years before Hon'ble High Court of Delhi which shows that he was serious about his litigation with his brother. I do not see that what advantage he could have got by filing an appeal in a wrong forum spending money and time on it, so, it can be safely said that he was acting in good faith and bonafidely. The conduct of his counsel which has come in question, cannot be said to be proper in any manner whatsoever as the factum of filing of appeal before Hon'ble High Court of Delhi from the judgment of a Civil Judge in itself shows that he was not aware even about the basic provision of law and procedure and despite this the plaintiff/ applicant kept on believing him for such a long period which in itself shows his ignorance or innocence towards the technicalities of procedure and law. The steps taken by the plaintiff/applicant after withdrawal of his appeal in themselves shows that he want to pursue his matter despite all odds i.e. his old age and illiteracy. In my opinion, the plaintiff/ applicant cannot be made to suffer merely for his ignorance and for the mistake of his counsel. It is well settled law that while deciding these kind of application, courts should not adopt hyper technical approach and should not seek day to day explanation from the applicant for delay as it is not possible to explain the same in all circumstances, especially where the parties contesting are old and illiterate who are not aware about the legal procedure and who are solely dependent upon their counsels, who some time commits misconduct which prejudice the rights of the parties. Hence, I allow the present application subject to cost of Rs.5,000/.
Announced in Open Court (NAVEEN ARORA)
on 22nd April- 2014 ADJ-06: South: Saket
New Delhi