Nitin Transport Co. (P). (Ltd.) vs International Airport Authority ...
1995 Latest Caselaw 519 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner by this petition filed under Article 227 of the Constitution-of India assails the order dated 23.5.1995 passed by Shri Ajit Bharihoke, Senior Civil Judge, by which he condoned the delay in filing of the appeal and the certified copy of the order impugned before him in appeal.

(2) The facts in brief leading to the filing of this petition are:-

(I)That the petitioner had filed a suit for prohibitory injunction accompanied with an application under Order 39 Rule 1 and 2 read with Section 151 of Civil Procedure Code The trial court allowed the application under Order 39 Rule 1 and 2 Civil Procedure Code vide its order dated 9.11.1993. The respondents thereupon preferred an appeal against the said order on 16.12.1993 without annexing a certified copy of the impugned order dated 9.11.1993. The certified copy of the order dated 9.11.1993 was filed on 11.2.1994, accompanied with an application under Section 5 of the Limitation Act for condoning the delay in filing of the appeal and the certified copy of the order dated 9.11.1993.

(II)The application of the respondent was allowed by the Senior Civil Judge vide his order dated 23.5.1995, which is assailed in this petition.

(III)Before the learned Civil Judge the respondent in the application for condensation of delay had stated that on learning about the impugned order they had requested the office of their counsel to apply for a certified copy of the order. On enquiry the respondent was told that they would be informed when the certified copy of the order would be made available. Few days later counsel for the respondent informed them that he would let them know the status about the certified copy as soon as his clerk returned from out of station.

(IV)The appeal was thereupon filed seeking exemption from filing the certified copy. It transpired that when the clerk of the counsel returned he informed that the slip of the application for certified copy had been lost. Accordingly, the respondent had to apply afresh for certified copy on 16.12.1993, which was made available on 9.2.1994 and was placed on record with the application for condensation of delay on 11.2.1994. The application for condensation under Section 5 of Limitation Act was duly supported with an affidavit of the clerk of the counsel for the respondent.

(3) The learned Civil Judge vide the impugned order held that the respondent had been able to explain the delay caused in filing of appeal as well as the certified copy. He held that the delay had been caused mostly due to the negligence on the part of the office of counsel for the respondent and the respondent should not be made to suffer for the said carelessness and negligence. He also relied on the decision in Union of India Vs. R.P. Builders reported at .

(4) Counsel for the petitioner urged that the application for condensation of delay was lacking in material particulars, inasmuch as, it does not give the particulars of the officer of the respondent who gave instructions to the counsel to apply for certified copy. It does not state the circumstances in which the slip was lost by the counsel's clerk and the efforts made to trace the same. No particulars regarding the approval taken by the respondents for giving instructions for applying of the certified copy were mentioned. The counsel submitted that the basic facts essential for condoning the delay were absent. The respondent had failed to give graphic detail and explanation for each day of delay. The counsel also submitted that the reliance on titled Union Of India Vs. R.P.Builders by the learned trial Judge was misconceived. Reliance was placed on Air 1990 Gauhati titled Maktinath Das Vs. 421 Smt.Brinda Dos reported at page 10 . The reliance by the counsel for the petitioner on Air 1990 Gauhati (supra) in support of his contention is misplaced. The said case is distinguishable on facts as condensation application was filed in the said case after the arguments were over and the judgment had been reserved. The plea taken was oversight by counsel, yet the source of information and the affidavit by the counsel were not filed. While in the present case the application for condensation of delay as observed earlier is duly supported by the affidavit of the clerk who was responsible for the negligence resulting in delay in filing of the appeal.

(5) The submissions by the learned counsel for the petitioner are without merit. The learned trial Judge has correctly exercised his discretion in accepting the explanation of the respondent regarding the delay in filing of the appeal and the certified copy of the order. The explanation is plausible and is duly supported by the affidavit of the clerk of the counsel. It is further not necessary to set out in graphic detail, the events and circumstances to explain each day's of delay. This has been settled by the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji And Others reported at , where in the Court has deprecated a pedantic approach in requiring explanation of each day's delay and instead held that the doctrine must be applied in a rational common sense pragmatic manner by adopting a justice oriented approach. This has been followed by the Apex Court in titled Basavalingappa Vs. Special Land Acquisition Officer, Ban- galore. The Division Bench of this Court has further enumerated the various relevant factors, specially applicable to the State or its instrumentalities while disposing of applications for condensation of delay in case reported at (supra).

(6) In view of the foregoing discussion the petition has no merit and is dismissed.