Smt. Gargia & Gargi & Ors. vs Union Of India
2009 Latest Caselaw 4430 Del

*      HIGH COURT OF DELHI : NEW DELHI

                     FAO No.229/2008

%            Judgment reserved on: 23rd October, 2009

             Judgment delivered on: 3rd November, 2009

    1. Smt. Gargia & Gargi
       W/o Late Sh. Kallu

    2. Ms. Sunita,
       D/o Late Sh. Kallu.

    3. Ms. Santosh,
       D/o Late Sh. Kallu.

    4. Ms. Anita (Minor),
       D/o Late Sh. Kallu.

    5. Master Ravi (Minor),
       S/o Late Sh. Kallu.

    6. Ms. Vineeta (Minor),
       D/o Late Sh. Kallu.

      Appellants No. 4 to 6
      Through their mother &
      Natural Guardian Smt. Gargia
      Presently At:
      H. No. B-1724, Shastri Nagar,
      Delhi-52

                                     ....Appellants
                      Through: Mr. N. K. Gupta, Adv.

                  Versus

      Union of India,
      Through General Manager,

FAO No.229/2008                                Page 1 of 11
       Northern Railways,
      Baroda House.
                                       ....Respondent.
                    Through: Mr. P. K. Dey with Mr.
                    Kaushik Dey, Advs.

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



V.B.Gupta, J.

Present appeal has been filed by appellants

against judgment dated 30th May, 2008 of Railway

Claims Tribunal, Delhi (for short as „Tribunal„). Vide

impugned judgment application under Section 17 (2) of

the Railways Claims Tribunal Act (for short as „Act‟)

filed by the appellants was dismissed.

2. Appellants have filed claim petition for

compensation against respondent on account of death

of Late Kallu, who died in an untoward train accident

on 18th July, 2006. Along with it, application for

condonation of delay was also filed, in which it is

stated, that appellants were under deep sorrow due to

untimely death of husband of appellant no. 1 and

father of appellants‟ no. 2 to 6. Appellant no. 1 visited

GRP, Faridabad number of times to know about

preparation of the inquest report but they did not give

any satisfactory reply. After numerous visits, police of

GRP/Faridabad supplied few documents on 18th June,

2007.

3. Thereafter, appellant no. 1, approached an

advocate Sh. Sanjay Adhana at District Court,

Faridabad and handed over all documents which were

demanded by him. That Advocate told her that he has

prepared the case and got the signatures of appellant

no. 1, on various documents and stated that he will file

the case within one year. He further told appellants,

that they need not come and he will inform them about

the progress of the case. However, that advocate

never informed appellants about progress of the case.

On 20th February, 2008, appellant no. 1 demanded the

case number and next date of hearing from her counsel

but he refused to give the same. Thereafter, appellant

no. 1 demanded her file and said advocate supplied

few documents. After this, appellants contacted the

present counsel who filed the present petition. There is

a delay of eight months and three days in filing this

petition. This delay is neither deliberate nor

intentional, rather it is due to the reasons stated

above. Appellants would suffer irreparable loss if

delay is not condoned, especially when rights and

interest of minor appellants are involved.

4. In reply, it is stated by respondent that story of

the appellants being duped by her previous counsel

cannot be accepted in absence of any proof of the

same. If any such illegal practice ever happened, the

appropriate forum for lodging complaint against such

counsel would have been the Bar Council. In absence

of the same, it is nothing but an attempt to mislead this

Court by concealing material facts. Appellants have

failed to give concrete and justifiable reasons for not

making the application within time. Thus, no ground

for condonation of delay is made out.

5. It is contended by learned counsel for appellants

that appellants are poor and illiterate villagers and

they did not have the knowledge of filing the claim

petition within one year. They handed over all the

documents to their counsel, who assured them he will

file the petition but unfortunately, said advocate did

not prepare the case nor he filed the claim petition

before Tribunal. Appellants cannot be punished for the

wrong committed by their Advocate. Moreover,

appellants 4 to 6 are minors and they cannot be

punished for the wrong committed by appellant no. 1.

Hence, there are sufficient grounds for condonation of

delay. In support learned counsel referred the

following cases;

(i) Ram Nath Sao & Others Vs. Gobardhan Sao and Anr; (2002)3 Supreme Court Cases 195;

(ii) M. K.Prasad Vs. P. Arumugam, (2001) 6 Supreme Court Cases 176;

(iii) N. Balakrishnan Vs. M. Krishana Murthy (1998) 7 Supreme Court Cases 123;

(iv) Collector, Land Acquisition, Anantnag &Anr Vs. Mst. Katiji & others; AIR 1987 Supreme Court 1353, and;

(v) Nagarjuna Patnaik Vs. Jayaky construction & Anr; III (2007) ACC 130, Orissa High Court.

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

counsel for the respondent that appellants have put

entire blame on their previous counsel. However, there

is nothing on record to show as to whether appellants

ever took any action against their previous counsel.

The explanation given for condonation of delay is

neither plausible nor reasonable and story given by

appellants, being duped by previous counsel cannot be

accepted in the absence of any proof. In support,

learned counsel referred to;

Lachhman Das Arora Vs. Ganeshi Lal and Others; (1999) 8 Supreme Court Cases 532;

7. Appellants have placed on record the railway

ticket, which prima facie, shows that deceased was a

bonafide passenger. Deceased was husband of

appellant no.1 and father of appellant nos. 2 to 6.

Appellants no 4 to 6 are minors, their interest and

legal rights cannot be over looked and they cannot be

punished for the wrong done by appellant no.1.

8. Though, there is delay of eight months and three

days in filing the petition, but this Court cannot over

look the facts that appellants are illiterate persons and

only bread earner of their family had died. There is

nothing on record to show that there was any other

adult member in the family to properly guide the

appellants with regard to their legal rights towards the

claim. Appellants being widow and children (including

minor children) of the deceased, as best could have

engaged an advocate and asked him to file the petition.

If their advocate had duped them and did not file the

claim petition within prescribed period, then

appellants cannot be made to suffer for that. When

only bread earner of a family dies, the family goes

under a state of shock and grief. There was no time for

the family members to pursue the legal remedy

available to them, unless they had completely

recovered from that shock.

9. In Vedabai @ Vaijayanatabai Baburao Pateil

vs. Shantaram Baburao Patil & Ors (AIR 2001 SC

2582), it was observed;

"In exercising discretion under Section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance".

10. In Smt. Sandhya Rani Sarkar Vs. Smt. Sudha

Rani Debi and Ors. (AIR 1978SC537), Supreme

Court held;

"It is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under Section 5 of the Limitation Act. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case"

11. In State of West Bengal Vs. The

Administrator, Howrah Municipality and Ors (AIR

1972 SC 749), the court held;

"The legal position when a question arises under Section 5 of the Limitation Act is fairly well-settled. It is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and

each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to "sufficient cause" or not. It is needless to emphasize that courts have to use their judicial discretion in the matter soundly in the interest of justice."

12. In various judgments cited by learned counsel for

the parties, basic principle is that the "Court has to

exercise discretion on the facts of each case keeping in

mind that in construing the expression 'sufficient

cause', the principle of advancing substantial justice is

of prime importance".

13. In the present case, there is a special

circumstance to be taken into consideration and, that

is, that three of the appellants are minors. The period

of their minority has to be taken into account for the

purpose of limitation. Since rights of minor are also

involved in this case, I deem it necessary in the

interest of justice to condone the delay in filing of the

claim petition. Accordingly, the present appeal stands

allowed.

14. The tribunal shall dispose of the matter on merit,

as per law. Parties shall bear their own costs.

15. Record of Tribunal be sent back.

16. Parties are directed to appear before Tribunal on

7th December, 2009.

November 3, 2009                       V.B.GUPTA, J.
bhatti