Dr. K.S. Bhardwaj vs Director Of Education And Ors.
2004 Latest Caselaw 183 Del

JUDGMENT

Mukundakam Sharma, J.

1. This order would dispose of the review petition filed by the petitioner under Order 47 read with Section 151 of the Code of Civil Procedure against the order dated 4th January, 2000 passed in CWP No.6478/2000 along with the application file by the petitioner under Section 5 of the Limitation Act praying for condensation of delay in filing the said review petition.

2. The petitioner filed the aforesaid writ petition in this court, which was registered as CW No.6478/2000. The writ petition was taken up for consideration and by order dated 4th January 2000 the said writ petition was dismissed. The effect the said order was that this court did not interfere with the order passed by the respondent removing the petitioner from service pursuant to the disciplinary proceedings initiated against him. The submission made in the said writ petition by the petitioner was that the said order of removal from service was passed by the respondent in violation of the principle of natural justice. This court considered the aforesaid plea but found no merit in the aforesaid plea. Being aggrieved by the said order passed by this court dismissing the writ petition, the petitioner preferred a letters patent appeal before the Division Bench, which was registered as LPA No.173/2001. However, by order dated 9th May, 2002 the Division Bench disposed of the said appeal with the following order:-

'' Learned counsel for the appellant wishes to withdraw the appeal on the ground that the appellant will file a review petition before the learned single Judge. Accordingly, the appeal is dismissed as withdrawn. Since we have disposed of the appeal, the application also does not survive and the same is disposed.''

3. The writ petition was dismissed by this court on 4th January 2001. The appeal was disposed of on 9th May, 2002 and the review application was filed in this court on 29th May, 2002. However, the said review application was returned to the petitioner because of the office objection, which was taken back by the petitioner and thereafter it was again refilled on 11th July, 2002. As the review application itself was filed beyond the prescribed period of limitation, the petitioner also filed an application under Section 14 read with Section 5 of the Limitation Act praying for condensation of delay in filing the same. In the said application it was stated that as against the order dated 4th January, 2000, the petitioner filed LPA No.173/2001; and also hat the petitioner bonafidely believed that the order of the learned Single Judge was appeasable and, therefore, the said LPA was filed. It was also contended that during the course of arguments in LPA, it transpired that before coming to the Division Bench in the LPA, the petitioner should have filed a review petition praying for review of the order dated 4th January, 2000 and, therefore, the petitioner sought for withdrawal of the appeal with permission to file the review petition before this court and, therefore, since there was a bona fide mistake on the part of the petitioner in filing the LPA, the delay in filing the review petition is required to be condoned.

4. The respondents entered appearance and contested the maintainability of the aforesaid review petition on the ground that the delay in filing the review petition cannot be condoned because no case for the said condensation of delay has been made at. It was submitted that the principles of Section 14 of the Limitation Act would not be applicable in the present case inasmuch as an appeal lies as against the order of the learned Single Judge and, therefore, the said appeal was filed by the petitioner in accordance with the provisions of law. It was also submitted that a delay of 875 days in filing the review petition cannot be condoned in any circumstance, particularly in view of the fact that no liberty was granted by the Division Bench in the PA to file the present review petition as the Division Bench simply recorded the statement of the petitioner that he wishes to withdraw the LPA in order to enable the petitioner to file a review application. However, while disposing of the said appeal, the Division Bench did not grant any liberty to the petitioner to file a review application. On the other hand, counsel appearing for the petitioner submitted that immediately after disposal of the appeal by the Division Bench, the review application was filed and, therefore, the petitioner is entitled to the benefit of the exclusion of time which was taken by the petitioner in pursuing the appeal before the Division Bench.

5. I have considered the submissions of the learned counsel appearing for the parties. The order passed by the Division Bench clearly indicated that while disposing of the appeal, no liberty was granted to the petitioner to file the present review petition. It simply recorded the desire of the plaintiff to withdraw the appeal to enable the petitioner to file a review petition. There can be no dispute to the fact that an appeal lies as against the judgment and order of this court dismissing the writ petition and, therefore, the said appeal which was filed by the petitioner was filed in accordance with the provisions of law. Filing of an appeal cannot be said to be not a proper course of remedy as provided for under the law. Therefore, the provisions of Section 14 is clearly not applicable to the facts and circumstances of the present case. The appeal which was filed by the petitioner was maintainable and the said appeal having been disposed of without giving any liberty to the petitioner for filing a review application, the period spent by the petitioner in prosecuting the appeal cannot be condoned by this court by applying the provisions of Section 14 of the Code of Civil Procedure. In t his connection, reference may also be mea to a decision of this court in ABDUL SHAKUR (Through L.Rs) and OTHERS VS. BARKAT ALI (Through L.Rs) and ANOTHER where in similar circumstances this court held that the petitioner had not at all shown sufficient cause for condensation of delay in filing the review petition. It was further held that their confusion that they were not aware of the law and, therefore, they preferred an appeal to the Appellate Authority and the time taken for prosecuting the appeal should be excluded cannot be accepted. Under the aforesaid facts, in the said decision, this court dismissed the application filed praying for condensation of delay in filing the application for review. The ratio of the aforesaid decision is squarely applicable to the facts of the present case and I find no reason to have a different view than what is taken by a Coordinate Bench. Reference could also be made to another decision of this court in HORO SINGH vs. AJAY KUMAR CHAWLA reported in 109 (2000) DLT 97 wherein it was held that for condensation of delay the counsel must specify the circumstances in which incorrect advice was given and that it was not sufficient to make only general statement that wrong advice was given. In the facts and circumstances of the said case it was held that no sufficient cause was shown for condensation of delay. In the said decision notice was take by the said court of the view taken by Hon'ble Mr. Justice Yogeshwar Dayal in BABU RAM VS. DEVINDER MOHAN KAURA And OTHERS reported in AIR 1981 Delhi 14 and also of the other High Court, which are to the effect that the counsel must disclose the circumstances in which incorrect advice was given and it is not sufficient to make a perfunctory and general statement that wrong advice was given bona fide. In that context it was held that no sufficient cause was shown for condoning the delay as no complaint was filed against the Advocate who purportedly gave the wrong advice and the petition was dismissed as without any merit. In the present case also, except for making a bald and general statement that because of the bona fide mistake of the petitioner in filing the LPA, the time spent by the petitioner in pursuing the LPA is required to be condoned, no other circumstances are given as to the nature of the mistake in preferring the LPA and also the nature and the kind of legal advice given by the counsel for the petitioner as he was all along represented by a counsel. The counsel at the time of filing of the appeal must have pointed out about the availability of both the courses and remedy open to the petitioner. Nothing is stated in that regard. No sufficient cause is shown to condone the said delay. The plea raised in the condensation application cannot be accepted in view of the ratio of the aforesaid decisions. In view of the aforesaid conclusions, the other pleas raised on the merit of the review application require no consideration. The application filed by the petitioner praying for condition of delay stands dismissed.

6. The review petition also stands dismissed.