Devi Dayal Sharma vs Hemant Kumar & Ors.
2010 Latest Caselaw 1891 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RSA 51/2009

                                    Date of Decision: April 12, 2010

       DEVI DAYAL SHARMA                       ..... Appellant
                     Through:            Mr. Parmil Kumar, Adv.

                    versus

       HEMANT KUMAR & ORS.                          ..... Respondents
                   Through:              Nemo.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)      Whether reporters of local paper may be
              allowed to see the judgment?
     (2)      To be referred to the reporter or not?            Yes
     (3)      Whether the judgment should be reported
              in the Digest ?                                   Yes

                         JUDGMENT

ARUNA SURESH, J. (Oral)

CM APPL.5757/2009 (delay) in RSA 51/2009

1. By way of this application, appellant has sought condonation

of delay of 1145 days in filing the appeal. Appellant had filed

a suit for damages on 18.12.1997 against the Respondents on

the grounds of circulation of defamatory pamphlets by the

Respondents against him. The said suit was decreed by the

trial court on 2.12.2002. Appellant had claimed damages of

Rs.1,01,100/- . However, the Trial Court was pleased to

award only Rs.1500/- as damages. Dissatisfied with the

judgment and decree of the Trial Court, appellant filed first

appeal on 7.5.2003. Said appeal was also dismissed on

1.12.2005. Present appeal has been filed by the appellant on

20.04.2009 along with this application.

2. In the application, reasons assigned for delay in filing the

appeal are that the appellant's wife is a chronic patient of

diabetes and continues to be on medicine, that appellant lost

his son aged about 40 years on 26.9.2008 due to heart-attack,

that appellant, a practicing lawyer has been suffering from

severe depression and could not file this appeal in time.

3. Documents annexed to the application are Glucose Test

Reports of wife of the appellant for the period from 4.11.2005

to 6.01.2009. She being a patient of diabetes naturally has to

remain on medicine to control her sugar. These reports do not

suggest that her blood glucose was alarmingly high and she

needed constant medical assistance from the appellant all the

time. Rather, these reports indicate only marginal rise in

blood glucose as against normal value. Undisputedly, she was

never admitted in any hospital for treatment.

4. Appeal was filed on 20.04.2009 i.e. after about 3 months of

the last prescription of medicine by the doctor to Santosh

Sharma wife of the appellant. No medical report thereafter

has been placed on record. As regards suffering of the

appellant from severe depression, I find no document on

record. It is also not indicated as to since when the appellant

is suffering from severe depression which restrained him from

filing the present appeal.

5. The Appellate Court has decided the appeal on 1.12.2005.

Son of the appellant, as per the death report, died on

26.9.2008 i.e. almost after three years of the dismissal of the

appeal. Period of limitation for filing an appeal is 90 days.

Therefore, to say that appellant could not file the appeal in

time because of the death of his son would be incorrect.

6. Mr. Parmil Kumar, learned counsel for the appellant has

submitted that on 7.1.2006, appellant had filed the Review

Petition against the order of the Appellate Court which was

dismissed on 20.01.2007. Even this plea is of no help to the

appellant. After dismissal of the Review Petition, appellant,

who himself is a practicing lawyer, did not take any steps to

get the appeal prepared and filed in the Court. Needless to

say, son of the appellant Nagender Gaur was also a practicing

lawyer and he was hail and hearty at the time when the

Review Petition was dismissed.

7. Under these circumstances, appellant has miserably failed to

explain the delay in filing this appeal. Under Order 41 Rule 3

(a) CPC appellant was required to show that he had sufficient

cause for not preferring the appeal within the prescribed

period. In this case, as discussed above, appellant has failed

to show sufficient cause to the satisfaction of the Court for not

preferring the appeal within the period of limitation. Hence,

application is dismissed.

RSA 51/2009

8. Since application for condonation of delay has been

dismissed, this appeal is not maintainable being barred by

period of limitation, it is accordingly dismissed.

ARUNA SURESH, J.

APRIL 12, 2010 vk