Delhi High Court
Maya Devi & Ors vs Union Of India on 20 December, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 450/2010
Reserved on : 10.12.2010
Date of Decision : 20.12.2010
MAYA DEVI & ORS .
.... Appellant
Through Mr. N.K.Gupta, Adv
VERSUS
UNION OF INDIA .... Respondent
Through Mr. Neeraj Attree, Ashish Gopal
Garg Adv.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J
CM No.22094/2010
Allowed subject to just exceptions.
Application stands disposed of.
C.M.No. 22093/2010 in FAO No.450/2010
1. This order shall dispose of the application filed by the appellant for
condonation of delay of 85 days in filing of this appeal.
2. Briefly stating the facts are; that the deceased, namely, Brijesh aged
22 years of age was travelling in the train GT express U.P bearing
No. 2615 on 10.06.2006 from Jhansi Railway Station to Hazrat
Nizamuddin Railway Station. When the train arrived in Faridabad,
the deceased fell down from the moving train due to a sudden jerk
and being pushed by the heavy crowd of passengers and sustained
serious injuries which ultimately resulted in his death.
3. The appellants are the parents of the deceased who filed a claim
petition along with an application for condonation of delay of 981
days in filing the claim petition. The application M.A. No. 10/2010
was heard by the Ld. Tribunal and was dismissed vide order dated
11.05.2010. The appeal before this Court was filed on 03.12.2010,
which was returned under objection on 04.12.2010 and was again
filed on 07.12.2010.
4. In the application seeking condonation of delay, it was pleaded by
the appellants that one Shri Vijender Kumar Yadav was engaged by
them as the counsel, however he left Delhi and moved to Bhagalpur
in Bihar without informing the appellants and it was only in the end
of January 2010 that the appellants could locate their counsel and
finally on 31.1.2010 the appellants received the file from a person
sent by Shri Vijender Kumar Yadav.
5. After hearing both the parties, the Ld. Tribunal dismissed the delay
application by observing that:-
"I have considered the submissions made by the
learned counsel for the parties, and, gone through the
record. The applicants have alleged that they are
parents of the deceased, Brijesh, who was 22 years of
age at the time of the accident. In the application for
condonation of delay, it has been stated that
Sh.Virender Kumar Yadav, Advocate, was engaged as
counsel for filing the claim petition, and, the
documents were also handed over to him but no claim
petition was filed by him as the counsel shifted to his
native place in Bihar at Bhagalpur. In the
application, it has also been stated in Jan 2010, the
applicant visited Bhagalpur to know the whereabouts
of his counsel, and, thereafter, the file was received by
the applicants only on 31.1.2010. The explanation
given in the application for condonation of delay are
not satisfactory, as nowhere it has bene mentioned
that on which date Sh.Virender Kumar Yadav,
Advocate, was engaged as counsel. A concocted story
has been set up in the application for condonation of
delay, as from the avernment made in the application,
it appears that the file was not handed over to either
of the applicants at Bhagalpur by the counsel Sh.
Virender Kumar Yadav. The applicants have also not
disclosed the name of the person from whom they
received the file on 31.1.2010. At Form-I of the
original Claim Petition, and, at page 5 of the claim
petition, two dates are mentioned, of 11.12.2009,
and, another of 16.02.2010. The perusal of the
record of original claim petition reveals that the claim
petition was ready on 11.12.2009 itself but the same
was filed before this Tribunal on 17.2.2010. The
averments made in para 04, and, para 05 of the
application for condonation of delay are contrary to
the dates mentioned in the original claim petition,
which is on record. The story set up by the
applicants that the file was received on 31.1.2010
from the earlier counsel, and, thereafter the petition
was prepared through another counsel is contrary to
the dates mentioned in the original claim petition.
The delay in filing the claim petition is 981 days.
Since the applicants have not approached the Court
with clean hands, they are not entitled for any
discretionary relief of the Court. The application of
condonation of delay deserves to be dismissed. It is
accordingly dismissed."
6. A perusal of the grounds given in the application for condonation of
delay filed before the trial court i.e. MA. No.10/2010 and the
grounds of appeal in FAO No. 450 of 2010 shows that the facts given
in both vary to a great degree. In the application namely M.A. No.
10/2010 the only ground taken for seeking condonation is that the
first counsel engaged by them had shifted to Bihar and hence the
delay whereas in the grounds of appeal given in the FAO it is
mentioned by the appellants that the new counsel engaged by them
namely Mr. Upender Singh has not mentioned all the facts which
were narrated by the appellants and due to their inability to read
and write they could not read the application and put their
signatures on it. Another new ground taken by the appellant is that
since the last inquest report of the Faridabad police was given on
15.12.2008 whereas the accident took place on 10.06.2006 hence
the delay was not on the part of the appellant, nor a deliberate one.
7. Counsel for the appellant has also relied upon various judgments to
contend that very liberal view should be taken when the issue of
condonation of delay is raised particularly in the cases like present
one where the compensation is sought for by the dependents of a
deceased person. Reference has been made to the following
judgments:
(a) Gargia & Ors. Vs. UOI I (2010) ACC 111
(b) Chekka Shantha Kumari Vs. UOI I (2006) ACC 514
(c) Ram Nath Sao Vs. Goverdhan Sao (2002) 3 SCC 195
(d) M.K. Parsad Vs. P. Arumugam (2001) 6 SCC 176
(e) Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji
and Ors. AIR 1987 SC 1353
(f) N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123
(g) Ram Ravalu Gavade Vs. Sataba Gavadu Gavade (dead) through
LRs. 1997 (2) RCR (Civil)
8. I have heard the parties and have gone through the order of the Ld.
Tribunal and in my opinion the appellants took a very callous
approach towards the entire case. They have not been diligent and
did not pursue the issue with total honesty which can be seen from
the new grounds which have cropped up in the FAO but are not
given in the claim petition. The crux of the judgments cited by the
appellant is that, on the issue of condonation of delay a liberal
approach should be adopted by the Court.
9. Moreover, the appellants have also not stated as to when they
entrusted the brief to Shri Virender Kumar Yadav, Advocate; when
Shri Virender Kumar left Delhi for Bhagalpur; when did they
entrusted the case to the new counsel and when the case was ready.
There is again no explanation as to why the petition was not filed
immediately. There is also no explanation about the delay of 85
days in re-filing the matter. Another fact which is of importance to
note is that explanations are sought to be given by Shri Upender
Singh in his affidavit which is filed with the written arguments
wherein he has stated that the previous claim petition was
containing the date as 11.12.2009 which was prepared by the
previous counsel namely Shri Virender Kumar Yadav. This
statement per se goes against the case of the appellant when he says
that Virender Kumar Yadav left Delhi for Bhagalpur without telling
as to what is the date of his leaving Delhi.
10. Without amending the pleadings, an affidavit has been annexed by
the counsel along with written submissions, wherein it has been
stated that he has sent his junior to file the said petition when the
date of filing was given as 16.02.2010 along with the previous
endorsement as 11.12.2009. This entire story is only an attempt to
somehow fill-in the lacuna and is not even mentioned in the
application for condonation of delay. In any event, the said affidavit
has its own defects inasmuch as the counsel says that the file was
received by him on or after 05.02.2010. He also states that he
prepared the petition and the date given was 11.12.2009. He again
says, he gave the file to his junior for filing who gave the
endorsement of 16.02.2010. He says that the previous counsel was
engaged by the appellant on 20.12.2008 which is not the date
mentioned in the application. He also states that his junior counsel
Meena Gupta argued the matter before the Tribunal. However, no
affidavit of Meena Gupta has been filed on record. In any case, there
is no explanation as to why even after preparing the case and file
was ready for filing on 11.12.2009, why the claim petition has been
re-filed in May 2010.
11. What appears to be is that all cock and bull story is being cooked up
on the part of the counsel for the appellant and there is no bona fide
in so far as explaining the delay is concerned on the part of the
appellants.
12. The law does not permit mis-placed sympathies. Despite being
conscious of the fact that the law laid down by the various courts,
including the Apex Court, is to take a very liberal view on the issue
of condonation of delay, in the facts and circumstances of this case,
the appellant is not entitled to seek any indulgence of this Court for
the simple reason that the explanation furnished by the appellant
for seeking condonation of delay of 85 days in filing of this appeal
does not inspire any confidence as well as the reasons given by the
Tribunal for not codoning the delay of 981 days does not call for any
interference by this Court. Consequently, the application for
condonation of delay is dismissed.
FAO No.450/2010
In view of the orders passed in CM No. 22093/2010, the
appeal stands dismissed. No Costs.
MOOL CHAND GARG, J
DECMBER 20, 2010
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