Delhi High Court

Brij Mohan vs Sunita on 13 January, 2010

Author: Aruna Suresh

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+           MAT APPEAL NO.21/2009

                          Date of Decision: January 13, 2010

      BRIJ MOHAN                              ..... Appellant
                          Through: Mr.Tarun Kumar and
                                   Mr.J.P.Upadhyay,
                                   Advocates.

                     versus


      SUNITA                                  ..... Respondent
                          Through: None.

      %
      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 No.3615/2009 (for delay in refilling)

1. By way of this application, appellant has sought

condonation of delay of 380 days in refilling the appeal. It

is averred in the application that appellant had filed the

appeal in February 2008 against the judgment and decree

of the Trial Court dated 29th November, 2007. Since

Registry raised certain objections and sought clarifications

of the same, appeal was taken back from the Registry.

Appellant pursued refiling of the appeal with his counsel

but the appeal could not be filed in time. In December

2008 i.e. after about more than nine months, appellant had

engaged another counsel to get the appeal refiled.

However, appeal was refiled only on 13th March, 2009 as

the new counsel took some time to remove the objections

in refiling the appeal. This resulted in delay of 380 days in

refiling the appeal.

2. Order XLI Rule 3A CPC enables an appellant to

file his appeal after the expiry of period of limitation

specified therefor, to be accompanied by an application

supported by affidavit setting forth the facts on which the

appellant relies on to satisfy the Court that he had

sufficient cause for not preferring the appeal within such

period. The Court is within its powers to reject the

application without the issue of a notice to the respondent,

if it finds no reason to condone the delay prima facie on the

averments contained in the application.

3. Appellant has not stated anything indicating

sufficient cause for not refiling the appeal within the

prescribed period of limitation i.e. not exceeding 7 days at

a time and 30 days in the aggregate to be fixed by Deputy

Registrar, Assistant Registrar, Incharge of the Filing

Counter. Rather application is vague and is devoid of any

material particulars. Even the affidavit enclosed with the

application is nothing but only a supporting affidavit

containing no reason for delay in refiling the appeal.

4. Learned counsel for the appellant has submitted

that delay is only in refiling the appeal, but the appeal was

filed in time. Therefore, delay in refiling the appeal be

condoned.

5. Part G, „Rules relating to proceedings in the High

Court of Delhi‟, Chapter 1, Rule 5 Part A sub(a) lays down

the statutory period for refiling of the appeal and also the

power of the Deputy Registrar to return the appeal for

amendment and refiling the same. This rule reads as

below:-

"5.(1) Amendment- The Deputy Registrar Assistant Registrar, Incharge of the Filing Counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI Rule 3, Civil Procedure Code.

(2).............

(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar in charge of the Filing Counter, under sub- rule (1) it shall be considered as fresh institution.

6. As per Sub rule (3) if the memorandum of

appeal is filed beyond the time allowed by the Deputy

Registrar, Asstt. Registrar, Incharge of the Filing Counter

under sub-rule (1), it would be considered as a fresh

institution.

7. Therefore provisions of Section 5 of the

Limitation Act would not be attracted to a case, where

appeal was initially filed within the period of limitation but

was returned back with certain objections to be refiled

within the period specified by the Dealing Assistant.

8. The appeal was initially filed on 25th February,

2008, on which the Dealing Assistant raised following

objections:-

"6. Previous office sheet bearing the objections be filed.

7. Complete appeal be signed."

Hence, the appeal was returned with the directions to

remove the objections and the same was to be refiled

within a week.

9. Dealing Assistant had no power to extend the

period of refiling beyond 30 days. Appellant failed to

remove the objections like caveat report to be obtained,

opening sheet to be filed and placed just before the appeal,

fair typed copies of dim annexures to be filed, correct

provisions of law to be given and page numbering to be

done properly within the prescribed period. Therefore,

refiling of appeal on 13th March, 2009 tantamounted to

fresh filing of the appeal beyond the period of limitation.

Condonation of delay, if any, is to be considered on the

facts and circumstances of this case.

10. As stated above, no reasons as specified under

Order XLI Rule 3 CPC have been assigned by the appellant,

neither in his application, nor in the affidavit. No

explanation has been given as to why the objections could

not be removed despite appellant having been asked to do

the same not once but on various occasions.

11. In Asha Sharma & Ors. Vs. Sanimiya

Vanijiya P. Ltd. & Ors. 162(2009) DLT 542 (DB), in

similar circumstances where the appeal was refiled after

expiry of 30 days‟ period, the Division Bench of this Court

considered the provisions contained in Part G Chapter 1

Rule 5, Part A sub(a) it was observed in para 9 of the

judgment as under:-

"9. It is quite clear from a bare perusal of the above Rule that the Deputy Registrar cannot grant time of more than 30 days in aggregate for

re-filing of a Memorandum of Appeal, for the reasons specified in Order XLI Rule 3 of the Code of Civil Procedure. If the Memorandum of Appeal, after removing the defects notified by the registry, is filed after more than 30 days, it shall be considered as a fresh appeal, filed on the date on which it is presented after removal of the defects."

12. The term "sufficient cause" appearing in Order

XLI Rule 3 CPC is generally to be construed liberally so as

to advance justice to the parties and the delay in refiling is

not subject to the rigors, which are usually applied in

excluding the delay in a petition filed under Section 5 of

the Limitation Act. Therefore, while considering

condonation of delay in re-filing, the Court is required to

consider the nature of the defects which led to return of

the document and if the objections are minor and technical

in nature, the Courts should be more liberal in condoning

the delay. However, the standards of testing bonafides of

the appellant have to be more strict where mandatory

documents are required to be filed with the Memorandum

of Appeal. The approach which the Court is required to

adopt has to be different in each case depending upon the

nature of objections raised by the Registry and required to

be removed by the appellant. The Court has to be

conscious of the fact that delay in refiling the appeal vests

a right in favour of the respondent who, on account of non-

filing of the appeal, becomes entitled to the benefits of the

judgment/decree/order against which the appeal is

preferred. Non filing of the appeal within the period of

limitation or refiling of the appeal beyond the period of

limitation makes the other party believe that the appellant

has accepted the order/judgment and decree of the Trial

Court or the First Appellate Court, as the case may be.

Therefore, the Court cannot mechanically condone the

delay in refiling the appeal, even if no reasonable cause is

shown at all.

13. In Asha Sharma's case (supra), it was further

observed by this Court as follows:-

"23. It is trite law that Rules of Procedure being hand-mades of justice, a party should not be refused relief merely because of some mistakes, negligence or inadvertence. Rules of Procedure are designed to facilitate justice and further its ends. But, even if we take a rather liberal

approach in this matter, we are unable to find any good ground for condonation of delay in filing this appeal. None of the reasons given in the application is convincing or logical. The impression we gather is that the appellants deliberately delayed filing of the appeal so as to prolong the litigation. It cannot be said that even if the appellants were totally negligent and careless and have not come forward with any worthwhile explanation for the delay, the court ought to condone the delay in re-filing. The Rules framed by the High Court cannot be allowed to be taken so casually and there will be no sanctity behind the rules if every delay in re-filing, is to be condoned irrespective of howsoever unreasonably long and unexplained it be, and howsoever mandatory be the nature of the documents, non-filing of which renders the Appeal defective. We cannot condone the delay merely because an application for condonation of delay has been filed. No court would not like to reject an appeal as time-barred unless there are strong reasons, which compel the court to take such a view. Some indulgence and a liberal view in such matters is well-accepted but to say that the court has no option in the matter and must accept the Memorandum of Appeal irrespective of the nature of the objections and delay in re-filing, even where there is no reasonable explanation to justify the delay, would only be travesty of justice and will be as good as

removing the relevant Rule in High Court Rules and Orders, from the Statute Book.

24. These days we find a growing tendency to file an incomplete Memorandum of Appeal and then take unreasonably long time to remove the defects, even where such defects can be cured within a very short time. Such a practice cannot be said to be conducive to be fair and reasonable and therefore needs to be curbed. An unduly liberal and benevolent approach will only give encouragement to such unfair practices and therefore is not called for. When an Appeal comes up for hearing long after expiry of the prescribed period of limitation, it springs surprise on opposite party, which assumes finality in his favour on account of non-filing of Appeal within a reasonable period."

14. As discussed above, in the instant application

appellant has not disclosed any cause what to speak of a

reasonable cause for delay of 380 days in refiling the

appeal. Hence, I find no merits in this application to

condone the delay in refiling the appeal. The application is,

therefore, dismissed.

CM No.3614/2009 (for exemption)

15. Exemption is sought from filing the certified

copies of the annexures.

16. With dismissal of the application seeking

condonation of delay in refiling the appeal, this application

has become infructuous. Hence, the same is accordingly