D.D.A. vs Roshan Lal Malhotra
2010 Latest Caselaw 3000 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RSA 21/2002

                                            Date of Decision: 1st July, 2010

D.D.A.                                   ..... Appellant
                     Through:      Ms. Sangeeta Chandara, Advocate

                            VERSUS

ROSHAN LAL MALHOTRA                                ..... Respondent
             Through:              Mr. Dig Vijay Rai, Advocate

%      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.

CM APPL Nos.63/2002 (delay in filing appeal) and 64/2002 (delay in refiling appeal) in RSA 21/2002

1. These two applications have been filed by the appellant department

under Section 5 of the Limitation Act for condonation of delay in

filing the appeal and condonation of delay in refiling the appeal.

2. The impugned judgment and decree is dated 4.5.1992. The main file

of the case was misplaced or was found missing from the department

since 5.7.1980. A part of the file was sent to the Legal Department

on 5.11.1992 for seeking opinion if any appeal was to be filed. The

period of limitation for filing the appeal is 90 days from the date of

the judgment and decree. The file was sent for legal opinion in about

six months of the pronouncement of the judgment. Therefore, when

the file was referred to legal department for opinion, the period of

limitation for filing the appeal had already expired. It reached

Deputy Legal Chief Advisor on 12.11.1992. Thereafter file was sent

to Vigilance Department on 18.11.1992 as it was required in the

inquiry, which was being conducted to fix responsibility of the

person who had lost the file. File remained with the Vigilance

Department till 28.07.1993. Vigilance Department retained the file

for about more than eight months. The Chief Legal Advisor took

final decision to file an appeal on 03.08.1993. Thereafter, the matter

was entrusted to panel lawyer, for filing the appeal, on 13.08.1993.

It could have been ensured by the department that the file was

returned back by the Vigilance Department so as to ensure that the

decision for filing of the appeal was taken at the earliest, but it seems

that Joint Director, Vigilance Department retained the file for quite

sometime with him for unknown reasons.

3. Intriguingly, though the case was entrusted to the panel lawyer on

13.08.1993, file was never sent by the department to the concerned

lawyer. With the result no appeal could be filed. It was only on

28.09.1995 i.e. after about more than two years that the file was sent

to another panel lawyer. This lawyer also did not file the appeal. The

file was collected back by the Dealing Assistant on 22.7.1998 for

filing reply to a complaint made by the Respondent to the Prime

Minister. The concerned lawyer had retained the file with him for

more than one month during which period he could have drafted and

filed the appeal, but failed to do so.

4. Amazingly, instead of filing the appeal, department again referred

the file to Chief Legal Advisor to decide if appeal was to be filed

against the impugned order because of delay in filing the appeal and

to verify if any appeal was filed by any of the earlier two panel

lawyers to whom the matter was entrusted. The matter was referred

to Senior Standing Counsel for seeking his advice. Senior Standing

Counsel took his own time and finally gave his advice on 15.1.1999.

After about 12 days of this advice the appellant decided to file an

appeal.

5. Things did not end here. Appellant took about three months time to

arrange the file for preparing the appeal. Senior Standing counsel

received the file on 19.04.1999 only. He also did not file the appeal

though he held a meeting for doing the same. In the meantime,

Senior Standing Counsel seemed to have tendered his resignation.

Finally, the file reached the present counsel on 24.09.1999 i.e. after

about five months of the file having been marked to the senior

standing counsel. Appeal was accordingly prepared and this counsel

also took about four months time to file the appeal and it was filed

on 10.01.2000. It goes unexplained as to why senior standing

counsel and the present counsel took such a long time to prepare the

appeal and file the same in the Court. After receipt of the record,

considering the substantial delay, which had already occurred in the

whole process, as narrated above and the appeal having become

patently time barred, could have been prepared and filed

immediately thereafter.

6. The entire discussion as above not only reflects the mannerism in

which file was handled by various departments of the appellant

without bothering about filing of the appeal at the earliest.

Unwarranted conduct of various officials of different departments

who had been handling the file reflects on their callous and

indifferent attitude in handling the case. Ironically, even the legal

department who had first taken decision to file the appeal after

getting it back from the Vigilance department thought of obtaining a

second opinion if any appeal was to be filed. There was no reason

for the department to review its own decision to file the appeal, taken

earlier on 3.08.1993. Appellant himself, therefore, is responsible for

inordinate delay in filing the appeal.

7. True that courts are liberal in considering the applications, seeking

condonatin of delay where the departments are involved because of

many administrative formalities and procedures which have to be

followed for deciding whether an appeal has to be filed against a

particular order or not. In this case it is not only the administrative

delay, but also the deplorable manner in which file has been handled

by various departments, the legal department, senior standing

counsel and other panel lawyers which resulted into not only delay

but inordinate delay in filing the appeal without any sufficient cause.

8. Appellant being an autonomous body of the Govt. seems to have

taken it for granted that they were at liberty to take their own time in

deciding whether an appeal is to be filed or not and that they were

entitled to take their own time to prepare and file the appeal, may be

after the expiry of period of limitation and seek condonation of

delay.

9. As discussed above, the delay has not been only at the initial stage

but at every stage i.e. legal department, vigilance department, the

lawyers, again the legal department, etc. The delay in filing the

appeal is for a period of 2805 days i.e. about seven years and eight

months.

10. Pathetic attitude adopted by the appellant is further reflected in

refiling the appeal beyond the period of limitation. Appeal was

entrusted to the counsel, who filed the appeal, on 24.09.1999. At the

relevant time the concerned Clerk, whose name is not disclosed, was

pre-occupied in his family matters and was frequently visiting his

native village. The other clerk Ramesh Kumar allegedly after taking

back the file with objections on 15.09.2000 placed the same with the

bundle of files relating to the private clients and disposed of matters

in the office of the lawyer. It goes unexplained as to why after re-

filing of the appeal on 10.01.2000 till 15.09.2000, file was not taken

from Registry for removal of the objections. After this error was

discovered by the appellant, appeal was refiled on 18.12.2000 but

this time the Registry did not accept the appeal stating that refiling

was delayed. Matter was refiled on 03.01.2001. Registry again

found some objectins which needed removal. Instead of removing

the objections, allegedly the file was tagged with some files which

were decided and sent back to the DDA. DDA took its own time and

wrote a letter dated 01.06.2001 to the lawyer informing him about

this file having been tagged with another decided file and he also

returned back the appeal to be filed in the court and the appeal was

refiled on 02.06.2001. Thereafter file was returned with one

objection or the other and it was finally accepted by the registry on

21.02.2002.

11. Under the circumstances of this case when the delay in processing the appeal in filing and refiling is because of the indifferent attitude and irresponsible manner in which file was handled, it cannot be said that there are sufficient reasons for condoning inordinate delay in filing and refiling the appeal.

12. There is increasing tendency by various departments of the Govt. to ignore the period of limitation for filing an appeal and they take it as a matter of course that delay in filing the appeal would be condoned as and when it is presented in the Court. It is the need of the hour that this tendency is curbed. Only in genuine cases, where the court is satisfied that because of the bonafide administrative reasons delay occurred in filing the appeal, that delay should be condoned, not where movement of the file speaks volumes on misconduct of the department and their officials concerned in handling the file.

13. Hence, I find no merits in the applications, the same are accordingly dismissed.

RSA 21/2002

14. In view of dismissal of the applications for condonation of delay, this appeal is barred by period of limitation and is accordingly dismissed.

ARUNA SURESH (JUDGE) JULY 01, 2010 vk