Shri Bhim Singh vs Union Of India
2009 Latest Caselaw 1783 Del

*        HIGH COURT OF DELHI : NEW DELHI

    CM No. 9215/2006 & L.A.App.No.441 of 2006



%            Judgment reserved on: 28th April, 2009

             Judgment delivered on:1st May, 2009


Shri Bhim Singh, S/o Shri Daulat
(Since deceased)
Through his legal heirs
Shri Balbir Singh,s/o Sh.Bhim Singh
R/o Village Rawata, Delhi.         ....Appellant


                    Through: Mr.I.S.Dahia, Adv.

                                     Versus

 Union of India,
through Land Acquisition Collector
(South-West), Office At Old Terminal,
Tax Building, Kapashera,
New Delhi.                         ...Respondent

                    Through: Mr.Sanjay Poddar, Adv.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

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

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes

CM No.9215/06 & LA App.No.441/2006                Page 1 of 14
 V.B.Gupta, J.

This order shall dispose of application under

Section 5 of the Limitation Act, 1963 (for short as

„Act‟) read with Section 151 CPC, dated 15th May, 2006

filed on behalf of the appellant for condonation of delay

of 18 years 196 days in filing the appeal.

2. It is stated that Regular First Appeal filed by the

appellant is pending disposal and this appeal is against

the award/judgment of reference court dated 3rd

August, 1987 and order dated 25th September, 1991,

by which reference under Section 18 of the Land

Acquisition Act was disposed of.

3. Father of the appellant Sh.Bhim Singh died on

19th May, 1985 before the impugned award was

passed. The appellant was not aware of the pendency

of the reference. On coming to know about the said

case, an application for substitution of his name as

legal representative of Sh.Bhim Singh was filed and

the same was allowed by Addl.District Judge on 25th

September, 1991. After having received the

compensation of his father, he assigned the file of the

above case to Sh.Raj Pal Singh Yadav, Advocate for

filing the appeal.

4. Now about 25 days ago, appellant met one Shri

Ram Kishan of his village, who told him that in his

case, the compensation has been enhanced by this

Court. Thereafter, appellant remembered that he has

also engaged the service of Sh.Raj Pal Singh Yadav,

Advocate for filing the appeal in this Court about 15

years ago. The appellant attempted to contact Sh.Raj

Pal Singh Yadav but his colleagues told that he has

shifted to Rewari and on enquiry at Rewari he was also

not found there. Thereafter, about 20 days ago the

appellant contacted his present counsel and tried to

find out the latest position of his case. On enquiry and

inspection of the record, it was revealed that no appeal

has been filed by Sh.Raj Pal Singh Yadav in respect of

the appellant‟s acquired land before this Court. On the

advice of the present counsel, present appeal has been

filed bonafidely before this Court.

5. The appellant is semi-illeterate and is not well

conversant with the technicalities of law.

6. Supreme Court in case of State of Haryana v.

Chander Mani AIR 1996 SC 1622 has condoned the

delay of more than 20 years, observing that the

procedural law should not come in the way of

substantive justice. This Court has also condoned the

delay in filing of appeal for a period of 17 years in RFA

No.154/2001, Kanwal Singh v. Union of India and

also in the case of Standard Pharma Ceutical Ltd. v.

G.C.Jain 97 (2002) DLT 290 in which delay of 18

years was condoned.

7. Keeping in view the facts and circumstances of

the case, delay of 18 years 196 days in filing this

appeal may be condoned.

8. The application has been opposed by the learned

counsel for the respondent. In its reply affidavit, the

respondent has stated that the present application is

an abuse of process of law and has been filed in order

to prejudice the mind of this Court. No ground as

required under the provision of Section 5 of the Act

has been made out. The present appeal has been filed

after so many years despite the fact that appellant had

the knowledge of the impugned judgment and he did

not take any steps to file the appeal before this Court.

The only plea taken in the present application is that

the appellant has assigned the above case to one

Sh.Raj Pal Singh Yadav and has paid him fees for filing

the appeal. This is nothing but a vague and general

allegation deliberately made against the Advocate in

order to get a favourable order. The appellant has not

shown any documentary evidence that he has assigned

the case and given the court fees in order to file the

appeal. He has not disclosed anything about the date

on which he has given the court fee nor he has

disclosed about the name of the colleagues from whom

he got the information that the concerned Advocate

has shifted to Rewari. Appellant has not stated as to

when he made an enquiry in Rewari and it was found

that he was not available. The appellant has also not

disclosed as to the date when he received the

compensation of his father. The judgments relied by

the appellant are not applicable to the facts of the

present case. There is total lack of bonafide on behalf

of the appellant. No sufficient cause has been shown

for condonation of delay of more than 18 years in filing

of this appeal.

9. As per appellant‟s own showing after substitution,

he received the enhanced compensation but he has not

disclosed as to the date when he received the same. It

seems that the appellant accepted the judgment and

did not want to file any appeal against the impugned

order. Thus, the present application has been filed

concealing the above facts which the appellant is

supposed to disclose in the present application. Thus

the application is not bonafide and the same has been

filed with incomplete information and merit dismissal.

10. In rejoinder filed by the appellant he has

reiterated the averments made in the application.

11. It is contended by learned counsel for the

appellant that appellant is semi-illiterate with village

background and is not well conversant with the

technicalities of the law. He was not aware that the

compensation in respect of his acquired land has been

enhanced by this Court. When this fact came to his

knowledge he remembered that he had engaged Sh.Raj

Pal Singh Yadav, Advocate for filing the appeal but that

Advocate did not file the appeal despite court fees

having been paid to him. Thus, there are sufficient

cause for condonation of delay.

12. On the other hand, it is contended by learned

counsel for the respondent that the appeal is

hopelessly time barred and there is delay of more 18

years in filing of the appeal and no sufficient cause has

been shown for condonation of delay and the

averments made in the application are absolutely

vague and no date has been given as to on which date

the appellant engaged Sh.Raj Pal Singh Yadav,

Advocate for filing the appeal and when he purchased

the court fee. In support of its contentions learned

counsel for the respondent has cited a decision of this

Court reported as K.M.Sharma v. Union of India, RFA

Nos.36 & 37/2003.

13. Section 5 of the Act, enables a "Court" to admit

an appeal or an application after the expiry of

prescribed period on sufficient cause being shown for

the delay. So, a bare reading of this Section goes on to

show that appellant has to show sufficient cause for

not filing the appeal in the prescribed period.

14. The case of appellant is that after getting the

compensation, he engaged the services of one

Advocate Sh.Raj Pal Singh Yadav for filing the appeal

in this Court about 18 years ago. Initially Bhim Singh,

father of the present appellant had filed a reference

before the Court of Addl.District Judge, Delhi and that

reference was disposed of on 3rd August, 1987.

Thereafter, present appellant moved an application

under Sections 151 and 153 CPC for correction of the

cause title and review of the order dated 3rd August,

1987. In that application, it was stated that the father

of the appellant died on 19th May, 1985 and the

appellant had no knowledge of the pendency of the

reference till 15th December, 1985 when other villagers

told him about the pendency of the case. Thereafter,

he contacted Sh.K.R.Solanki, Advocate and requested

him to move an application for impleading him as legal

representative and thus, the application was made on

17th December, 1985.

15. Vide order dated 25th September, 1991, the

Addl.District Judge, Delhi allowed that application and

appellant was impleaded as legal representative of

Bhim Singh.

16. So, one fact is clear from appellant‟s case that

with effect from 15th December, 1985 he had the

knowledge about the pendency of the reference and

thereafter, he has been pursuing this litigation.

17. Now, the reason given for not filing the appeal in

prescribed period, is that about 25 days prior to (15th

May, 2006), he had met one Sh.Ram Kishan of his

village, who told him that in his case, the compensation

was enchanced by this Court and thereafter, only

appellant remembered that he also engaged the

services of Sh.Raj Pal Singh Yadav, Advocate for filing

the appeal in this Court, about 15 years ago.

18. Admittedly, appellant had engaged an Advocate at

the time of filing the appeal, about 18 years ago.

There is nothing on record to show that during these

18 years, he ever bothered to know about the fate of

his case. As per appellant‟s conduct, he remained

quite negligent and careless and did not contact his

Advocate at all.

19. The appellant has shifted the burden of his

carelessness and negligent act on his counsel, Sh.Raj

Pal Singh Yadav. In the present application, it is

nowhere stated as to on which date, month or year

appellant tried to contact his counsel Sh.Raj Pal Singh

Yadav and which of his colleague told him, that he has

shifted to Rewari. There is also nothing on record to

show, as to on which date and during which period,

appellant made enquiry at Rewari about his counsel.

There is nothing on record to show that Sh.Raj Pal

Singh Yadav, Advocate has shifted to Rewari and since

when he has shifted there. Moreover, if the counsel

for the appellant was negligent and did not inform the

appellant for all these 15 years after having obtained

court fee from the appellant, then why did the

appellant not take any legal action against the counsel.

There is nothing on record to show that any written

communication was sent by the appellant to know

about the whereabouts of his previous counsel. All the

averments made in the present application are

absolutely vague, afterthought and not supported by

any documentary evidence. The judgment cited by

learned counsel for appellant are not applicable to the

facts and circumstances of this case.

20. It is well settled that whether delay is to be

condoned or not, is the discretion of the Court but the

same has to be exercised judicially. The Supreme

Court in Ram Lal and Ors. v. Rewa Coalfields Ltd.,

AIR 1962 SC 361 held that;

"It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is

dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s. 5 without reference to s. 14."

21. Thus, the explanation given by appellant in not

filing the appeal for more than 18 years, is not at all

convincing nor it is supported by any documentary

evidence. So, no sufficient cause has been made out

for condonation of the delay of 18 years 196 days, in

filing this appeal. The present application is most

bogus one and frivolous and if such like applications

are allowed, then no litigation will reach its ultimate

end.

22. As no ground is made out for condonation of

delay, the application for condonation of delay is,

hereby, dismissed.

L.A.App.No.441 of 2006

In view of the dismissal of application for

condonation of delay, the present appeal is time barred

and the same is also dismissed with costs of Rs.5,000/-.

Costs be deposited with the trial court within one

month from today failing which the trial court shall

recover the same in accordance with law.

No order as to costs.

Copy of this judgment be sent to the trial court.

May 01, 2009                         V.B. GUPTA, J.
Bisht