Shri A. R. Nim & Ors. vs Shri Vishwa Mitra
2008 Latest Caselaw 1292 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

              CM No.6192/2007 & CM No.6193/ 2007

                                 IN

                        RFA (OS) No.27/1980

                                 Date of Decision: August 8, 2008

Shri A. R. Nim & Ors.                           ... Appellants

                          Through: Mr. R.S. Kela, Advocate


                             Versus

Shri Vishwa Mitra                               ... Respondent

                          Through: Mr. Sandeep Sethi,
                                   Sr. Advocate with
                                   Ms.Geetika Kanwar,
                                   Advocate

CORAM:

HON'BLE MR. JUSTICE MANMOHAN SARIN
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not?             No

3.     Whether the judgment should be reported
       in the Digest?                                     No

SUDERSHAN KUMAR MISRA, J.

1. This order disposes of two applications filed by appellants.

CM. No. 6192/2007 is an application filed by the appellants under

Order 41, Rule 19 read with Section 151 of the Civil Procedure

Code for restoration of the appeal which was dismissed in default

on 7.04.2005. It is accompanied by CM No. 6193/2007 praying

that the delay of nearly 2 years in applying for restoration be

condoned under Section 5 of the Limitation Act. The relevant

facts are as follows;

2. This appeal was filed in the year 1980 by Mr. A. R. Nim and

his wife Mrs. Satya Bala Nim impugning a judgment delivered

against them in Suit No. 29/1972, where it was held that the

plaintiff in that suit, Mr. Vishwa Mitra, is the owner of the suit

property, i.e. 16, Hanuman Road, New Delhi, and that Mr. Nim

and his wife are injuncted and directed to vacate the portion

bearing No. 16-B, within two months and hand over the

possession to the plaintiffs. At that time the appellants were

represented by Mr. R. S. Kela and Mr. S. K. Tiwari advocates. Over

the period of time, the above named appellants have been

represented by different advocates including Mr. L. R. Gupta. We

also notice that on some dates the appellant Mr. A. R. Nim has

appeared in person.

3. Thereafter on 29th May, 1984 this Court disposed of an

application under Order 6, Rule 17 of the Civil Procedure Code,

whereby the respondent was permitted to file an amended plaint

within 6 weeks and the matter was adjourned to 8.10.1984.

Dissatisfied with the terms of the said order dated 29.05.1984,

the respondent moved the Supreme Court of India seeking

Special Leave to Appeal against the said order. On 02.05.1985,

the Supreme Court was pleased to stay further proceedings

before this Court. As a result none appeared before this Court

when the appeal came up on 3.09.1985 and on 6.09.1985.On

6.09.1985, this Court directed that since the Supreme Court has

stayed further proceedings, no further action is necessary and

that the matter should now be put up when it can proceed

further.

4. Thereafter, a letter dated 7.11.2000 was sent by the second

appellant, Mrs. Satya Bala Nim, addressed to the Hon‟ble Chief

Justice of this Court, praying for early disposal of the appeal. The

matter was sent to the listing section for taking further action.

However, before the case could be taken up Mrs. Satya Bala,

expired on 25.12.2000. Thereupon, two CMs were filed under

Order 22, Rule 3 for substitution of the second appellant, Mrs.

Satya Bala, by her legal representatives. These were, CM

No.47/2001 filed by the first appellant Mr.A.R.Nim on 7.03.2001,

for substituting himself, Ms. Manju Chhaya, daughter of the

second appellant and Mr. Dalip Nim, son of the second appellant,

as legal representatives of the second appellant; and CM

No.52/2001 filed by Ms. Manju Nim Chhaya on 7.03.2001,

claiming to substitute only her along with appellant No.1 as legal

representative of the second appellant, and not Mr. Dalip Nim.

5. Ultimately on 19.03.2001, when the matter was put up

before the Joint Registrar, Mr.Gagan Gupta, who is noted as

having appeared for appellant no. 1, was directed to intimate

whether the interim stay of the Supreme Court of India in the

aforesaid SLP, still continues or not, and the matter was

adjourned to 30.03.2001. On that day, Mr.Gagan Gupta,

appeared for the first appellant Mr.A.R.Nim and informed the

Court that the appeal pending before the Supreme Court of India

had been withdrawn on 23.10.1992 and that there was no stay

operating in the matter. The applications for substitution were

also listed on that day. Notices of these applications were

accepted in Court and the matter was adjourned for reply and

rejoinder thereto to 25.05.2001.

6. On 25th May, 2001 the Presiding Officer was on leave and

the matter was notified for 11.09.2001. It appears that in the

meanwhile, on 26.07.2001 the appeal came for hearing in the

category of old cases. However, since both the aforesaid

applications for substitution of Legal Representatives were

pending, the Court directed that the appeal be posted for hearing

after the Legal Representatives of appellant No. 2 Mrs. Satya Bala

are brought on record.

7. From the record, we find that on 7.03.2001, a Vakalatnama

was filed by Sh. S. S. Tripathi, Mr. Manish Vashisht and Mr. Gagan

Gupta, Advocates on behalf of Mr. Dalip Nim, who was the son of

the deceased second appellant. There is another Vakalatnama

that has been filed by Anil Kumar, J. as counsel, as His Lordship

then was, on behalf of Ms. Manju N. Chhaya, the daughter of

deceased second appellant. Although, this Vakalatnama is dated

7.3.2000, we feel that this is a mistake and the date should be

7.3.2001 for two reasons. Firstly, it is stated to have been filed on

behalf of Ms. Manju N. Chhaya, daughter of, "late Smt. Satya

Bala..." The said Mrs. Satya Bala died on 25.12.2000.

Consequently, there could be no reason for this vakalatanama to

be filed before the death of Mrs. Satya Bala on 25.12.2000.

Furthermore, even from the court record, we find that the

documents placed before and after this vakalatnama pertain to

the year 2001. From this, it is quite obvious that the date of the

vakalatnama is incorrect and it was filed on 7.3.2001.

8. Again, on 20.11.2001, while Mr. S.S. Tripathi, Advocate,

entered appearance for the first appellant, Mr. A.R. Nim, Mr. Anil

Kumar, Advocate appeared for Ms. Manju Nim Chhaya, i.e.,

daughter of the deceased second appellant. On that date, this

Court directed substitution of the son and daughter of the

deceased appellant No.2. They were arrayed as appellant

Nos.2(b) and 2(c) in the amended memo of parties filed on

21.12.2001. While the matter was pending, Shri Anil Kumar

Advocate, was elevated to the Bench of this Court on 16.7.2004.

9. Thereafter, the matter was taken up on 7.4.2005. On that

date, there was no appearance for the appellants and the matter

was dismissed by this Court for that reason. The order reads :

"Present: None for the appellant Mr. M.S. Vohra for the respondent.

RFA (OS) 27/1980

Nobody is present for the appellant.

Dismissed."

10. Ultimately, on 29.3.2007, appellants No.2(b) and 2(c), i.e.,

the aforesaid Mr. Dalip Nim and Mrs. Manju Nim Chhaya, moved

the instant applications for restoration of the appeal and for

condonation of delay in seeking restoration.

11. The appellants‟ case is that they came to know that the

appeal had been dismissed in default only on 12.3.2007. They

say that they had been continuously staying abroad and that

their counsel never informed them of this fact. In addition, they

say that before the order dismissing their appeal in default was

passed, their counsel, Mr. Anil Kumar had already been elevated

to the Bench, which fact was also not intimated to them. Under

the circumstances, what is to be seen is whether the grounds

pleaded by the appellants constitute „sufficient cause‟ to condone

the delay in seeking restoration of the appeal. The Supreme

Court in Kanta Devi Jain Vs. Kuntal Kumari, AIR 1969 SC

575 held that:

"If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan (4) "section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is importable to the appellant."

12. Similarly, the Supreme Court in Ram Nath Sao Vs. Gobardhan Sao (2002) 3 SCC 195, explaining the scope of the expression "sufficient cause held that:

"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear

that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner..."

13. Similarly, while deciding an application for condonation of

delay, the Supreme Court in State of W.B. Vs. Administrator,

Howarah Municipality (1972), 1 SCC 366 held that the delay

in filing of the appeal should not have been for the reasons which

indicate the party‟s negligence in not taking the necessary steps,

which he could have or should have taken. What would be such

necessary steps will depend on the facts and circumstances of a

particular case. It was further held that the words „sufficient

cause‟ should receive a liberal construction so as to advance

substantial justice when no negligence or inaction or want of

bonafide is imputable to a party.

14. From the above judgments it can be inferred that there

cannot be a straight jacket formula for determining as to what

constitutes „sufficient cause‟ and it will depend on the facts and

circumstances of each case. However, while considering the

sufficiency of the cause what has to be kept in mind that

although the expression "sufficient cause‟ must be construed

liberally, there should be no inaction, negligence or want of

bonafides on the part of the defaulting party. This was also the

view taken by a Division Bench of this Court in R.K. Churiwala

Vs. Kunj Behari And Anr, ILR (2004) 2 Del 651 where it was

held that the expression "sufficient cause" should be given liberal

construction so as to advance substantial justice when no

negligence, inaction or want of bonafide is imputable to a party.

15. In the case at hand, the applicants were impleaded as

appellants No.2(b) and 2(c) in place of the deceased appellant

No.2, Mrs. Satya Bala on 20.12.2001. Thereafter, the matter

remained dormant for the next three and a half years. Ultimately,

pursuant to an earlier order of this Court dated 26.7.2001,

wherein it was directed that the appeal be posted to hearing after

the legal representatives of the deceased appellant No.2 were

brought on record, the matter was posted by the Registry for

hearing on 7.4.2005, i.e., after nearly three and a half years. On

that date, since there was no appearance on behalf of the

appellants, the matter was dismissed. This order has clearly been

made under Order XLI Rule 17 of the Code of Civil Procedure due

to the appellants‟ default. The applicants state that they have

been continuously staying abroad. At the bar, it was also

contended that the main counsel, who was looking after their

matter, was Mr. Anil Kumar who had been elevated as a Judge of

this Court on 16.7.2004. They state that because of the elevation

of their counsel, no further information was given to them about

the progress of this case. The applicants also state that they

came to know about the dismissal of their appeal when they

heard that the respondents are proceeding to execute the

original decree against which the instant appeal was pending,

through one of the relatives of the appellant No.2(c), Mrs. Manju

Nim Chhaya, who then conveyed this information to her brother,

i.e., the other appellant, Mr. Dalip Nim.

16. From the submission of the parties, it is obvious to us that

although appellant No.2 (b), Mr. Dalip Nim, had also engaged

some other counsel in 2001; there was no gainsaying the fact

that the counsel for appellant No.2(c), Mrs. Manju Nim Chhaya,

had been elevated to the Bench of this Court on 16.7.2004. It is

also obvious that Shri Anil Kumar, Advocate, as His Lordship then

was, was the main counsel looking after the entire matter. In

addition, looking to the circumstances, we can see no other

reason why the appellants would not normally pursue this appeal.

17. In that view of the matter, we condone the delay and set

aside the dismissal of the appeal in default by the order dated

7.4.2005. Consequently, both applications are allowed; the delay

is condoned subject to costs of Rs.11,000/- and the appeal is

restored to its original number and status.

18. The applications stand disposed of.

Sudershan Kumar Misra, J.

Manmohan Sarin, J.

August 8, 2008 mb/OPN