Delhi District Court
Delhi Development Authority vs Sh. Jai Bhagwan Gupta on 4 July, 2007
-1-
IN THE COURT OF SMT. PINKI ADDITIONAL
DISTRICT JUDGE DELHI
RCA NO. 152/05
IN THE MATTER OF:
1. Delhi Development Authority
Through its Vice President
Vikas Sadan, I.N.A., New Delhi.
2. The Executive Engineer,
Eastern Division XII,
Delhi Development Authority,
DDA Office Complex,
Near Radhu Palace Cinema,
Laxmi Nagar, District Centre,
Vikas Marg, Delhi.
3. Assistant Collector Grade-I,
Delhi Development Authority,
Vikas Minar, 16th Floor, I.P. Estate,
New Delhi ....Appellants
Versus
Sh. Jai Bhagwan Gupta,
S/o Late Sh. Pyare Lal,
C-1/17, Yamuna Vihar,
Delhi-110053. .....Respondent
Date of Institution: 11.11.2005
Date of Reservation of Order: 02.07.2007
Date of Order: 04.07.2007
Contd.....
-2-
ORDER
1. Vide this order I shall propose to decide an application under Section 5 of The Limitation Act dated 10.11.2005 filed alongwith the main appeal on 10.11.2005 seeking condonation of delay in filing the appeal.
2. I have heard Sh. R.M. Tatia, Advocate Ld. counsel for applicant/appellant and carefully perused the record as well as the trial court record. The Non-applicant/respondent has already been proceeded ex-parte vide order dated 12.04.2007 passed by this court. I have given my considerable thought to the submissions put forth by learned counsel for applicant/appellant.
3. As per record the impugned order was passed by Ld. Trial Court on 08.07.2005 vide which the suit was decreed in favour of the present non- applicant/respondent and the application for Contd.....
-3-obtaining certified copy was moved on 11.07.2005 which was prepared on 18.07.2005. However, the present appeal has been filed on 10.11.2005.
4. As per the averments made in Para-4 of the application under disposal the details as to how the matter got delayed have been mentioned. It has been averred in Para-4 of this application that the Senior Law Officer had sent the certified copy of the judgement to the concerned JLO on 21.07.2005 who had sent the file with comments to EE/ED-12 on 25.07.2005. The file was further moved on 29.07.2007 to EE/ED-12. It was again put up before Deputy CLA on 29.07.2005 and 02.08.2005. File was again moved from EE/ED- 12 on 03.08.2005 to CLA. It was put up before Deputy CLA who had given his opinion on 08.08.2005 and was put up before the CLA on 09.08.2005. The panel advocate was appointed on 01.09.2005. However, the file was sent to the concerned department i.e. EE/ED-12 on 06.09.2005. The necessary documents were collected and file Contd.....
-4-was handed over to the panel lawyer in the last week of September, 2005. Counsel for DDA prepared the appeal and sent for signatures to the competent authority on 20.10.2005. The file alongwith appeal was received and the appeal has been filed.
5. I rely on the following authorities:
1. State of Nagaland Vs. Lipok AO & Ors.
2005(4) SBR 318 Supreme Court of India
2. Delhi Development Authority Vs. Dalip Kumar 137 (2007) Delhi Law Times 309
3. Smt. Shanti Devi Vs. Sh. Bhan Raj & Ors.
1990 (18) DRJ Delhi High Court
4. N. Balakrishnan Vs. M. Krishnamurthy 1998 SAR (Civil) 739 Supreme Court
5. Union of India Vs. R.P. Builders 57 (1995) Delhi Law Times 337 (DB)
6. State of Haryana Vs. Chandermani & Ors.
AIR 1996 Supreme Court 1623
7. Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 (PC)
8. Shakuntala Devi Jain Vs. Kuntal Kumari AIR 1969 SC 575 Contd.....
-5-
9. Lala Matu Din Vs. A. Narayanan 1969 (2) SCC 770
6. As regards the judgement titled N. Balakrishnan Vs. M. Krishnamurthy (Supra) there was delay of 883 days which was condoned. In Para 11 of this judgement 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 of very long range can be condoned as the explanation thereof is satisfactory.''
7. In Para 15 of judgement titled N. Balakrishnan Vs. M. Krishnamurthy (Supra) it has been observed that: -
''It must be remembered that in Contd.....-6-
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.''
8. In Para 8 of the judgement titled Union of India Vs. R.P. Builders (Supra) it has been observed that: -
''Theabove decisions of the Supreme Court clearly lay down that while the State cannot be treated differently Contd.....-7-
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.''
9. In the judgement titled State of Haryana Vs. Chandermani & Ors. (Supra) vide Para 7 it has been observed in following words: -
''Experience shows that on account Contd.....-8-
of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgement 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-grate 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.''
10. Vide Para 10 of judgement titled State of Haryana Vs. Chandermani & Ors. (Supra) it is held that: -
''It is notorious and common knowledge that delay in more than 60 per cent of the case filed in this Court - 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 Contd.....-9-
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 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, therefore, be considered with pragmatism in justice-oriented approach rather Contd.....
- 10 -
than the technical detection of sufficient cause for explaining every day'sdelay. 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.''
11. From the careful perusal of the authority relied by this court i.e. State of Nagaland Vs. Lipok AO & Ors. (Supra), in Para 10 and 11 of this judgement it has been opined by Hon'ble Supreme Court that: -
''theproof of sufficient cause is a condition precedent for exercise of Contd.....
- 11 -
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.''
12. It has also been opined that: -
''Whatconstitutes sufficient cause cannot be laid down by hard and fast rules.''
13. In Para 11 of this judgement, 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 Vs. Kanshi Ram, ILR (1918) 45 Cal 94 (PC) and Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575.
14. In Brij Indar Singh Vs. Kanshi Ram (Supra) it has been observed that: -
''trueguide for a court to exercise the discretion under Section 5 is Contd.....
- 12 -
whether the appellant acted with reasonable diligence in prosecuting the appeal.''
15. In Shakuntala Devi Jain Vs. Kuntal Kumari (Supra) a three judges Bench had held that: -
''unlesswant 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.''
16. The judgement titled Lala Matu Din Vs. A. Narayanan (Supra) earlier referred in Para 12 of this judgement 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 bonafide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.'' Contd.....
- 13 -
17. In Para 17 of this judgement, 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: -
''ifthe 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'sdelay. 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.''
18. In Para 14 of the judgement, it has been expressed that: -
''itis common knowledge that this Court has been making a justifiably liberal approach in matters instituted Contd.....
- 14 -
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.''
19. In Para 4 of judgement titled Smt. Shanti Devi Vs. Sh. Bhan Raj & Ors. (Supra) also Hon'ble Mr. Justice D.P. Wadhwa, the then Judge, Delhi High Court has discussed that: -
''theexpression 'sufficientcause'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.''
20. In judgement tilted Delhi Development Contd.....
- 15 -
Authority Vs. Dalip Kumar (Supra), our own High Court has referred to various authorities and vide Para 10 of this judgement 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.''
21. It is pertinent to mention that in the appeal application has to be considered under order XLI Rule 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.
Contd.....
- 16 -
22. It is well settled proposition of law that if the refusal to condone the delay, result in grave miscarriage of delay, it would be a ground to condone the delay. 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 Rule 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.
23. I have given my considerable thought to the submission putforth by Ld. counsel for appellant/ applicant and carefully perused the record. The perusal of record reveals that this application is supported by an affidavit of Sh. Ratan Lal, Executive Engineer of ED 12. The impugned order was passed on 08.07.2005. An application for obtaining certified copies was moved on 11.07.2005 which was Contd.....
- 17 -
prepared on 18.07.2005, therefore, eight days time for obtaining certified copy has to be deducted and the appeal could have been filed by 17.08.2005, however, it has been filed on 10.11.2005. There is no explanation regarding sending the file by Senior Law Officer to the JLO on 21.07.2005 when certified copy was already prepared on 18.07.2005. Similarly there is no sufficient explanation for putting up the file before the CLA on 03.08.2005. There is no explanation as to why the JLO has sent the file with comments after four days i.e. on 25.07.2005 and how the file was further moved on 29.07.2007 to Executive Engineer ED 12 and before the Deputy CLA on 02.08.2005. The Deputy CLA has given his opinion on 08.08.2005 and it was put up before the CLA on 09.08.2005. The panel advocate was appointed on 01.09.2005. There is no explanation for taking twenty three days time for appointment of the panel advocate. The file was handed over to the panel advocate in the last week of September, 2005. Again it took about one month after appointment of panel advocate for sending the Contd.....
- 18 -
file to the panel lawyer. Even no date of receipt of file by the panel lawyer has been mentioned. After receipt of file in the last week of September, 2005 the appeal has been prepared and sent for signatures of Competent Authority only on 20.10.2005. It has taken about three/four weeks for preparing the appeal and sending the file to the Competent Authority for signatures. No date of receipt of appeal after signatures has been mentioned even though appeal has been filed on 10.11.2005 i.e. after about twenty one days from sending the appeal for signatures.
24. It is clear that sufficient cause has not been explained for such delay. At the most, the appeal after deducting period for obtaining certified copy should have been filed by 17.08.2005, but it has been filed on 10.11.2005. There is delay of about eighty five days in filing the appeal. This 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 considered while deciding Contd.....
- 19 -
such application but sufficient reasons have to be explained. There should be sufficient cause which has to be explained by the applicant, which compelled him from filing of the appeal after lapse of period of limitation.
25. Nothing has been brought on record in order to show banafide of inaction or negligence on the part of DDA.
26. 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 judgement of our own High Court titled DDA Vs. 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 Contd.....
- 20 -
condoned. Even if the government machinery is concerned, they are also supposed to explain the sufficient cause.
27. In the instant case, I am of the considered view as discussed in the preceding para, the sufficient cause has not been explained. Hence, the delay in filing the present appeal cannot be condoned. The present application is devoid of merits hence, dismissed. Parties shall bear their own cost.
28. Since, admittedly the appeal is time barred, hence, appeal is also dismissed. Copy of order be sent alongwith TCR.
29. Appeal file be consigned to Record Room. Announced in the open court on 4th July, 2007 (PINKI) ADDITIONAL DISTRICT JUDGE, DELHI Contd.....
- 21 -
Contd.....
- 22 -
RCA 152/05 04.07.2007 Present: Proxy counsel for parties.
Vide separate order announced today, the application u/s 5 of The Limitation Act, is dismissed. Parties shall bear their own cost.
Since, admittedly the present appeal is time barred, hence the appeal is also dismissed.
Copy of order be sent alongwith TCR. Appeal File be consigned to Record Room.
(PINKI) Additional District Judge, Delhi/ 04.7.2007 Contd.....