D.S.I.D.C. Ltd. vs Export Unlimited And Anr.
2007 Latest Caselaw 1024 Del

JUDGMENT

Hima Kohli, J.

1. By way of this review petition, the appellant is seeking review of the order dated 23rd November, 2006 whereby the appeal preferred by the appellant was dismissed on the ground of delay and also on the ground that the appeal was still with objections raised by the registry and not removed by the appellant.

2. Very briefly, the relevant facts for disposing of the review petition are that that the appeal was initially filed with the Registry on 29th October, 2005. The same was scrutinized by the Registry from time to time and various objections were raised. The said appeal was taken back by the counsel for the appellant from the filing counter only on 2nd June, 2006, i.e. after a period of seven months. Thereafter, as objections which required to be removed were still persisting, the appeal was again taken back or refiling. The Registry raised objections on 18th June, 2006 asking the appellant to file an application for condensation of delay in refiling the appeal which was replied to by the counsel on 2nd August, 2006 stating that the matter be placed before the Court as it is. The appeal was returned on 7th August, 2006 with the objection that sufficient Court fee was not affixed on the documents and the impugned order. The said objection was removed and the appeal was refiled on 7th September. 2006. The Registry raised yet another objection on 18th September, 2006 that appeal be refiled with an application for condensation of delay. However, no such application was filed and the appeal was listed with the said objection in Court.

3. On the first date of hearing, i.e. 8th November, 2006, the appeal was adjourned to 20lh November, 2006 on the basis of an adjournment slip circulated on behalf of the appellant. On the next date of hearing, as it was observed that the appeal was filed on 29th October, 2005 (erroneously typed as 29th September, 2005 in the order) and the same was processed by the Registry on 7th November, 2005 and thereafter nothing was done in the matter till 7th August, 2006, an explanation was sought from the registry as to why there was such an inordinate delay in processing the matter. The matter was adjourned to 23rd November, 2006. Before the next date of hearing, the appellant filed two applications, one for condensation of delay in refiling the appeal and the other application under Section 5 of the Limitation Act for condensation of delay in filing the appeal. After perusing the report of the Registry and the applications of the appellant, vide order dated 23rd November, 2006, it was held that the appellant failed to make out a case of sufficient cause for seeking condensation of delay and that the objections raised by the registry still continued to persist. Thus the appeal was rejected on the ground of delay and failure to remove the objections on behalf of the appellant.

4. In the present review petition, it is submitted that as the appellant was unaware of the report of the Registry on 23rd November, 2006, when the appeal was rejected, he could not apprise the Court of the correct position and has thus filed the present application.

5. We have perused the review petition. The main ground on which the appellant has sought review is that when the appeal was originally filed in the Registry on 29th October, 2005, the same was given filing No. 37170. But later in the day, a new filing No. 3528 was stamped by the Registry on the back of the Memo of parties and both the filing numbers were maintained as a result of which the appeal could not be traced by the clerk of the counsel under the original filing number at the filing counter and could not be taken back to remove objections.

6. At the first blush, the aforesaid explanation furnished for not being able to locate the appeal paper book seems quite plausible. However, considering that the filing counter of the High Court is fully computerized, in case the status of a petition/appeal has to be checked up, the filing number is no doubt relevant but the cause title of the case is equally relevant as the particulars of the case are entered by the filing number as also with the cause title. Assuming in favor of the appellant that while scrutinizing the appeal at the filing counter under the originally assigned number i.e. 37170, the office of the counsel for the appellant was drawing a blank not knowing the new filing number assigned to the case, the next logical step was to have the status of the appeal checked by the cause title which would have immediately brought out the necessary results. This was however not done for reasons best known to the appellant. It is also pertinent to note that the present mix- up occurred because though the appeal was to be filed on an ordinary basis at a different window, the same was filed at the urgent filing counter. The filing numbers maintained at the urgent filing counter are different from those maintained at the ordinary filing counter. When the Registry upon receiving the appeal paper book from the urgent filing counter discovered that the same was an ordinary appeal, a fresh filing number was assigned to the appeal paper book. Thus the fault lay with the office of the counsel for the appellant in filing the appeal at the wrong filing counter.

7. Taking the matter further, in the application for condensation of delay which contained only three paras, a plea was taken that as the file was not traceable under the original filing number, a search was made and the staff of the Registry, with great difficulty, located the appeal in the last week of May, 2006 and thereafter, the appeal was refiled on 2nd June, 2006. However, in the review petition running into twenty seven pages, the original case has been sought to be improved upon by claiming that it was only after the Registry was threatened that the matter would be reported to the Court, that the counsel and the clerk were allowed by the Registry to search the file of the appeal paper book which was found lying under objections. We do not appreciate such a stand taken in the application. The tone and tenor maintained throughout the review petition is to paint the Registry black by contending that the Registry while preparing its report pursuant to orders dated 20th November, 2006 had concealed material facts, made false statements, deliberately withheld the relevant information and failed to disclose the relevant facts, to the point of saying that the Registry had tampered with the records. These are grave allegations. An attempt has been made to portray the appellant as completely blameless while making the Registry the scapegoat. We may note that the application for condensation of delay filed by the appellant was rejected mainly on two counts. Firstly, that the time lag of seven months between first filing i.e. 29th October, 2005 and taking back of the appeal, i.e. end of May, 2006 remained unexplained and secondly that the objection raised by the Registry about filing an application for condensation of delay at the time of refiling the appeal was not complied with by the appellant. Thus we do not propose to detain ourselves by scrutinizing the explanations now sought to be furnished in the review petition with regard to the taking back of the appeal paper book from the Registry and refiling the same from time to time after May, 2006 till September, 2006.

8. We have already made our observations with regard to the first issue. Insofar as the second issue is concerned, assuming that it was not within the knowledge of the appellant that an objection was raised by the registry on 18th September, 2006 with regard to refiling the appeal without an application for condensation of delay, fact remains that even on an earlier date on 18th July, 2006 when the appeal was returned under objections and the appellant was directed to file a proper application for condensation of delay in refiling the appeal, the response of the appellant thereto was that the matter be placed before the Court as it was. Thus no such mileage can be sought to be gained by the appellant by seeking to lay the entire blame at the door of the Registry. Fact remains that the appellant is not blameless in its conduct.

9. In normal circumstances, even if the appeal is filed on an ordinary basis, the same is likely to be listed within a period of one month. In the present case, considering that the appeal was originally filed in the end of October 2005, non-listing of the same in Court till the end of November, 2005 could still be understandable. However, when the appeal was not listed or traced out till the beginning of January, 2007, surely alarms bells should have rung. In such circumstances, any prudent person/litigant would have approached the Registry on an urgent basis to find out the status of the appeal. To say that only the original number assigned to the appeal was available with the clerk of the counsel and there was no other mode or manner of tracing the appeal at the filing counter, is devoid of merits. Computerization of the Registry does not permit making such a lame excuse. Even if it is accepted that it was only on being threatened of a complaint to the Court that the staff of the Registry traced the appeal, still nothing prevented the counsel for the appellant to approach the Court earlier, or at least after two-three months of filing the appeal. Had the appeal been diligently pursued by the office of the counsel for the appellant, the matter would not have come to such a pass. This however did not seem to be the case. It cannot be countenanced that a matter would remain pending in the Registry for a period of seven months after filing, had some vigilance been shown at the end of the appellant.

10. After taking note of all the aforesaid facts, ideally the review petition ought to fail on account of lack of diligence and vigilance shown in pursuing the appeal with the Registry that resulted in such a gross delay in refiling the same. However, we would not like injustice to be caused to a party on account of omissions on the part of the counsel and his office in pursuing the appeal, more so when such a rejection shall result in depriving the party of a remedy of appeal available to it under the statute. The appeal ought to be heard and disposed of on merits. The Court is, therefore, inclined to take a lenient view in the matter and allow the review petition not for any of the reasons stated in the petition, but despite the same, purely in the interest of justice.

FAO (OS) No. 659 of 2006

The appeal be listed before an appropriate Bench, as per the roster, on 25th May, 2007 for further proceedings.