Babu Lal vs Kishan Lal
2010 Latest Caselaw 3045 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    RSA No. 265/2006

                                    Reserved on: November 04, 2010
                                     Date of Decision: July 02, 2010


       BABU LAL                                   ......Appellant

                              Through:    Mr.Dharam Dev,Advocate.

                     versus

       KISHAN LAL                                 .....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.

CM No. 10724/2006 (for delay) in RSA No. 265/2006

1. Appellant has filed this application seeking

condonation of delay in filing the appeal challenging the judgment

and decree of the First Appellate Court dated 23rd March, 2006.

2. Appellant has sought condonation of delay on the

grounds that RCA No.21/05 was listed for hearing on 23rd March,

2006 when the judgment was passed by the court, that appellant was

appearing in person as advocates were not appearing because of

strike in Tis Hazari Courts, that he requested his counsel to apply for

certified copy of the judgment and decree and also to draft appeal

against the impugned judgment and decree, that he became busy due

to board examination and competition preparation of his son and

could not approach his lawyer from May 2006 till the end of

vacation as his son was appearing in entrance examinations for

professional colleges, that as told to him by the advocate, the file was

damaged by termites, and he destroyed the same, that when

appellant contacted his advocate on 3rd July, 2006 he came to know

that there was delay in filing, that he collected the papers and applied

for documents from judicial record on 7th July 2006, which he got on

14th July, 2006 and thereafter he filed the appeal, that there is a delay

of 56 days which was caused by circumstances beyond his control.

3. Respondent had put in appearance through his counsel

after receipt of notice. However, on 12th March 2008, none appeared

on his behalf. Mr.Dharam Dev, Advocate appearing on behalf of the

appellant has submitted that delay in filing the appeal was due to

bona fide reasons and sufficient cause as the file was

damaged/destroyed by the termites and the appellant could not

contact him. Appeal could be filed only after receiving certified

copies of the impugned judgment and decree of the First Appellate

Court on 19th July, 2006 and after removal of objections and

payment of court fee, he refiled the appeal on 8th August, 2006. He

has prayed that under these circumstances, substantial question of

law regarding limitation for filing the suit is involved in this appeal

and since dispute is inter se the brothers, delay in filing the appeal

deserves condonation.

4. First appeal was decided by the Appellate Court vide

impugned order dated 23rd March, 2006. Undisputedly, appellant

was present in the court when the judgment was pronounced.

Though it is averred in the application that appellant had requested

his counsel to apply for certified copy of the judgment and decree to

file second appeal, however, it is not known if appellant or his

advocate had in fact applied for obtaining certified copy of the

judgment and decree for filing the appeal within the period of

limitation. As per the record and as per his own averment in para-7

of the application, he applied for certified copy of the documents and

judgment only on 7th July, 2006.

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

from the date of the judgment and decree appealed. Section 12 of

the Limitation Act entitled the appellant to exclude the period taken

for preparation of the certified copy i.e. from the date it was applied

till the date it was readied for supply. Appellant received certified

copy of the judgment and decree on 14th July, 2006. It is pertinent

that when appellant filed an application for obtaining the certified

copy of the documents, period of limitation for filing the appeal had

already expired. Therefore, in this case, appellant cannot take any

benefit under Section 12 of the Limitation Act.

6. In 'Riasat Ali Vs. Smt.Sayeeda Begum & Anr.',

90(2001)DLT 112, it was observed that there is no provision which

allowed a litigant to apply for a certified copy on the reopening day

and get a remission from the commencement of the remaining of

time for the vacation period. Period of limitation for filing the

appeal was over on 21st/22nd June, 2006. High Court was closed for

summer vacations till 30th June, 2006. Appellant, therefore, was

required to file his appeal on 1st July, 2006 which he did not do. As

discussed above, he applied for certified copy of the impugned

judgment only after the expiry of the period of limitation for filing an

appeal.

7. It is submitted that appellant could not contact his

counsel because of pre-occupation with his son who was taking

board examination and entrance examination for professional

colleges. To my mind, board examination must have been over by

the end of March or may be in the first week of April. It is not

disclosed as to for which entrance examination, his son was

preparing. It is pertinent that a bald averment has been made in para-

4 of the application that appellant was busy because of his son's

examination and could not approach the lawyer. However, he has

not given any date of alleged entrance examination for professional

colleges. Appellant hardly had to do anything with the studies of his

son for competition purposes. He has not annexed any document on

record to indicate that his son was actually preparing for his entrance

examination for his professional colleges, and therefore he was

handicapped in meeting his advocate. Surprisingly, his advocate is

stated to have destroyed the file because it was damaged by the

termites. While knowing that this appeal was to be filed even if the

file was damaged by the termites, it was required to be saved for

purposes of preparing the appeal. It is pertinent that Mr.Dharam

Dev, who has filed this appeal on behalf of the appellant, was also

his advocate in the First Appellate Court. However, it is not clear

from the record if he was also representing him in the Trial Court.

To substantiate the plea that the file was destroyed by termites,

Mr.Dharam Dev or his associate or clerk could have filed an

affidavit to this effect. I do not find any such affidavit on record. It

is not believable that only the file pertaining to this case was

destroyed by the lawyer having been damaged by the termite attack.

Therefore, it cannot be considered as a sufficient cause for

condonation of delay.

8. Appeal was finally filed on 8th August, 2006 after

obtaining certified copy of the judgment on 14th July, 2006.

However, delay in filing the appeal after 14th July, 2006 goes

unexplained on record. Under these circumstances, appellant has

failed to convince or satisfy the Court that due to sufficient reasons

he could not file the appeal in time.

9. As discussed above, no appeal could have been filed

without certified copy of the judgment and appellant is not entitled to

any benefit under Section 12 of the Limitation Act. He applied for

certified copy after expiry of period of limitation for filing the

appeal. Appeal was, therefore, patently barred by time even if

reasons for condonation of delay are considered to be sufficient

cause.

10. Hence, application is dismissed.

RSA No.265/2006

11. In view of dismissal of the application seeking

condonation of delay, appeal being barred by period of limitation is

accordingly dismissed.

ARUNA SURESH (JUDGE) JULY 02, 2010 sb