Delhi High Court
Smt. Rana Devi (Deceased) Through ... vs Shri Lachhman Dass Chaturvedi And ... on 28 April, 2008
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. The appellants are aggrieved by the order dated 16.9.2005 dismissing appellant's application under Section 5 of the Limitation Act which prayed for delay to be condoned in moving an application under Order 41 Rule 19 of the Code of Civil Procedure.
2. Appellants' appeal was dismissed in default on 19.5.1999. Restoration thereof was prayed for by filing an application on 8.5.2002.
3. What had happened was that during pendency of the appeal, against an interim order passed in the appeal the respondent preferred a revision petition in this Court registered as C.R. No. 247/1996. Due to the pendency of the said civil revision petition in this Court further proceedings could not be continued in the appeal as the same were stayed by this Court.
4. Counsel informed me at the hearing that the interim order challenged in the civil revision petition pertained to an application for substitution filed by the appellants during the pendency of the appeal which order was challenged by the first respondent on the ground that the learned Appellate Judge could not have effected substitution.
5. The civil revision petition came to be dismissed in default in July 2000. It is obvious that the civil revision petition remained pending in the record room of this Court for nearly 4 years.
6. Unfortunately for the appellants they were not aware of the dismissal of the civil revision petition and only when they learnt about the same they proceeded to the learned Appellate Judge to have their appeal heard but realised that the appeal itself was dismissed in default on 19.5.1999.
7. Neither counsel have been able to explain to me as to how appeal could have been dismissed in default on 19.5.1999 when proceedings in the appeal were stayed and the civil revision petition in which proceedings before the First Appellate Judge were stayed was dismissed in default in July 2000.
8. Be that as it may, the appellant filed an application under Order 49 Rule 19 of the Code of Civil Procedure praying for restoration of the appeal as also an application under Section 5 of the Limitation Act praying that delay in filing the former application be condoned. Afore-noted facts pertaining to the stay of the proceedings in the civil revision petition as also its dismissal etc. were pleaded in the two applications.
9. Declining to condone the delay in filing the application under Order 49 Rule 19 of the Code of Civil Procedure learned Trial Judge has held that the appellant was negligent. What has weighed with the learned Appellate Judge is that no sufficient cause was shown as to why after civil revision petition was dismissed in July 2000 the appellant did not take appropriate steps.
10. Law pertaining to delay being condoned is crystallized in various judicial pronouncements. I need not make a summary of the decisions but would only note the salient features of law.
11. While considering the sufficiency of the cause negligence alone has not to be considered for the reason without negligence there can hardly ever be a default. Every default would have some element of negligence. What has to be considered is whether the party was bona fide prosecuting the litigation and was taking steps in furtherance thereof before the default was committed. The reason for this judicial approach is that substantive rights have not to be sacrificed at the altar of procedural laws and hence as long as cost can recompense the opposite party every attempt has to be made to give effect to substantive rights.
12. Rules of limitation which were framed in the 19th century and the provisions of the Code of Civil Procedure pertaining to substitution etc. are rooted on the belief that the suits would be heard and decided on day-to-day basis. That appeals and revisions would be heard and decided on day-to-day basis. But the reality is otherwise. In this Court I have seen appeals and revisions being decided after as many as 20 years. It would be most unfair for a Court to tell a party that I would take 20 years to decide but as far as you are concerned I require you to come to my Court everyday to find out the status of your case.
13. In the instant case, as noted above, a civil revision petition filed in the year 1996, (the civil revision petition being filed by the respondent), suffered dismissal in default in July 2000. I do not expect the appellant to be present in the corridors of this Court everyday to find out when was civil revision petition listed for hearing.
14. What is relevant is that the appellants were keeping a track of their appeal and the civil revision petition.
15. It would also be relevant to note that while considering the issues of procedural laws, impact thereof on substantive rights have to be considered. The suit by the appellant is for recovery of possession of immovable property. If the appeal is not restored, appellant's right to property would come to an end for all times to come for the reason today the claim for recovery of possession is time barred. If the suit is filed today to seek possession the same would suffer a dismissal at the threshhold.
16. This is an additional factor which has weighed with this Court in adopting a liberal and constructive approach to the core issue.
17. Before concluding I may note that the instant appeal ought not to have been filed as it is not the correct remedy. The appropriate remedy is a petition under Article 227 of the Constitution of India.
18. Thus, with consent of parties, at the very hearing of the instant appeal it was agreed that the appeal could be treated as a petition under Article 227 of the Constitution of India and power exercised as contemplated by said article of the Constitution.
19. Relatable to Article 227 of the Constitution of India it is sufficient for me to note that where the impugned order causes manifest injustice or miscarriage it would be a sufficient ground to interfere under Article 227 of the Constitution of India.
20. The appeal is allowed. Impugned order dated 16.9.2005 is quashed. Appellants' application under Section 5 of the Limitation Act as also the application under Order 41 Rule 19 of the Code of Civil Procedure are allowed. The first appeal filed by the appellant is restored.
21. On a formal application filed before the learned Successor Judge the appeal would be restored and after notice to the respondents thereof would be decided on merits.
22. No costs.
