Delhi High Court
S.V. Khadekar vs Shri Ram Scientific Industrial ... on 9 February, 1989
Equivalent citations: 38(1989)DLT10
JUDGMENT M.K. Chawla, J.
(1) Along with the main S.A.O., the appellants have filed this application (CM 39/89) under Section 5 of the Limitation Act for the condensation of delay in refiling this appeal. Even though the delay is not mentioned in number of days, but it is pointed out that it is more than Ii months in refiling the appeal. This application is supported by the affidavit of counsel for the appellant. The delay is sought to be explained that the file of the case was misplaced in the bundle of decided cases and came to the knowledge of the counsel only after some files were required to be discovered from those papers.
(2) The contention is that originally the appeal was filed within limitation but it was returned for removing certain objections and thereafter the file was misplaced and the appeal could not be filed within the time allowed. The further contention is that once the appeal has been filed within the limitation then the refiling of the appeal cannot be dismissed as time-barred. It can only be rejected in view of order 41 Rule 3 CPC. In support of his submission, he relied upon a Judgment reported as 1972 Plr 241, wherein under similar circumstances, the learned Judge condoned the delay in refiling the appeal.
(3) I do not agree with any of his submission. The fact remains that the objections pointed by the Registry were not only formal but substantive in nature. One of the objections was that the certified copy of the lower court was not duly stamped. Rule 13 of Chapter I (High Court Rules & Orders), Vol. V specifically lays down that the improperly stamped documents remain invalid unless filed through mistake and time extended for making up the deficiency. In this case, no such application was moved nor any order from the court was sought.
(4) Learned counsel for the respondent has relied upon the Judgment of this Court Smt. Parvati & Ors. v. Shri Anand Parkash, Air 1987 Delhi, 91', wherein there was 8 months' delay in refiling the appeal. The sum and substance of that Judgment reads as under ; "S. 5 of the Limitation Act would not be attracted to a case where an appeal/objection has been initially filed within the prescribed period of limitation and the same does not suffer from any infirmity of a vital nature but there is delay in refiling the appeal after removing the defects as pointed out by the Deputy Registrar. The rigours of law of limitation regarding condensation of delay would not apply to such a situation and the court has simply to satisfy itself that there is a plausible explanation for the delay. But it cannot be said 'that there is no sanction behind R. 5(1) of Punjab High Court Rules and Orders and the Court will be powerless to reject the memorandum of appeal or impose any other appropriate penalty if the appellant behaves in a totally negligent, reckless or erratic manner in not refiling the appeal after removing the defects within a reasonable time. Thus where the appellants took nearly nine months in refiling the appeal and no explanation for this inordinate delay except a vague averment that the file was misplaced was forthcoming the appeal was liable to be rejected".
(5) In this very Judgment, the provisions of the Rule 5(1) of the High CourtRules&OrdersVol.V was considered Along with the provisions of Order4lRule3C.P.C. This Judgment fairly and squarely applies to the present case. I find no substance, in this application, the same is hereby dismissed.
(6) As a necessary consequence, the appeal is also dismissed.