India Timber & Plywood Co. And Ors. vs Akhil Chit & Finance (P) Ltd.
1994 Latest Caselaw 50 Del

JUDGMENT

Usha Mehra, J.

(1) By this application the petitioner has sought condensation of delay in filing the certified copy of the impugned judgment dated 13.11.92, against which the present Revision has been filed. While exempting the petitioner from filing certified copy it was made clear vide order dated 10.2.93 that it was subject to just exception. Petitioner was aware that certified copy had to be filed within time. The limitation for filing the certified copy expired.

(2) The facts of the case are that the present petitioners (Defendants before the Trial Court) filed leave to defend application to the suit filed by the respondent under Order 37 of the Code of Civil Procedure. The said application was dismissed vide order dated 13.11.92. Counsel for the petitioners applied for the certified copy on 29.1.93. As per petitioner's own showing the certified copy was ready on 5.3.93, but the same was obtained from the copying agency on 24.3.93 and was filed in this Court on 31.3.93. By this time the period for filing the Revision had expired.

(3) By the present application the petitioner wants the delay in filing the certified copy to be condoned on the ground that Mr. Sanjay Singh, Clerk of the Counsel filed the application in the Registry and since end of February 1993 he fell ill. He, however, came on 24.3.93 and obtained the copy from the copying agency on that day itself, but on account of weakness he left for his house without informing the Counsel. He did not return the certified copy to the Counsel till he was called to bring it on 30.3.93. The Clerk accordingly brought the certified copy and the same was filed on 31.3.93. Hence the delay was beyond the control of the petitioner. Petitioner cannot be made to suffer because of the negligence of the Clerk of the Counsel. Along with this application, affidavit of Mr.Sushil Kumar Jain, proprietor of the petitioner-company as well as of Mr. Sanjay Singh, Clerk of Counsel have been filed.

(4) This application has been contested by the respondent, inter alia on the ground that no proof whatsoever about the illness of the Clerk has been furnished nor it has been mentioned that during this period the Clerk never came to the Court or he did not perform any function. On the contrary in the additional affidavit it has been averred that "the Clerk was not attending his usual work" which means that he was coming to the Court. Moreover, his Delhi address has been concealed instead his permanent address of the village has been given. Finally his brother is stated to be working in the State Bank of India at Tis Hazari Courts Branch, through whom the message was conveyed by the Counsel to the Clerk. If the story as put by the petitioner is to be believed, then the Clerk could have sent the copy through his brother earlier. There could not have been any problem for him to bring the copy of the judgment. This shows that the story put forward by the petitioner is an after thought.

(5) I have heard Counsel for the parties and perused the record. Admittedly, except the bald statement that the Clerk of the Counsel was ill, no proof what ever has been placed on record to establish that the Clerk was ill. First affidavit filed of the Clerk did not disclose the disease for which he suffered. However, at the instance of the Court additional affidavit was filed of the Clerk which shows that he was suffering from eye congectivities and also with high fever. That was in the end of February, 1993. He nowhere depose that in the first week of March, 1993 he was still ill or had not been coming to the Court. The receipt issued by the copying agency has also not been placed on record to prove as to from 29.1.93 how many dates were given by the copying agency for collecting the certified copy. Nor any medical certificate about the illness of the Clerk has been filed. Even the story of Clerk's taking away the certified copy to his home does not appear to be reasonable. If the Counsel for the petitioner could send message through the brother of the Clerk, then why the Clerk could not send the certified copy or the receipt for collecting the certified copy through his brother to the Counsel. It is not the case of the petitioner that the Clerk was not aware of the fact that the certified copy was to be filed in the High Court within time. In fact no satisfactory explanation has been given for condoning the delay. From the perusal of the affidavits filed and the averments made therein, lam not satisfied that any reason or plausible explanation has been offered for condoning the delay. The judgment relied by the Counsel for the petitioner in the case of Collector Land Acquisition, Anant Nag & Anr. v. Mst. Katiji & Ors. F, has no application to the facts of this case.

(6) For the reasons stated above, the application seeking condensation of delay is hereby dismissed. Even otherwise on merits also I find that petitioner has not raised any friable issue. The judgment of the Trial Court does not suffer from any infirmity. Revision petition beside being filed beyond the period of limitation is also liable to be dismissed as it has no merits. The same is accordingly dismissed.