Amrish Kumar Chopra & Ors. vs Madhu Malik & Ors.
2010 Latest Caselaw 3312 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       RSA NO. 237/2004

                                    Date of Decision: July 16, 2010

       AMRISH KUMAR CHOPRA & ORS.         ..... Appellants
                       Through: Dr. Aman Hingorani,
                                Advocate.
                versus

       MADHU MALIK & ORS.                                ..... Respondents
                    Through:                 Mr.Arun Khosla for
                                             Ms.Sujata Kashyap,
                                             Advocate for Respondents
                                             No. 1 and 2.
                                             Mr.Arun Khosla and
                                             Shreeanka Kakkar,
                                             Advocates for the
                                             applicants.

       %
       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. 1401/2009 (u/O 6 rule 17 CPC r/w S. 151 CPC)

1. Appellants filed this appeal after period of limitation

for filing it had expired. An objection was accordingly raised by the

Registry and thereafter appellants filed an application being CM

No.15073/2004 seeking condonation of delay in refiling the appeal.

With the change of counsel, appellants have filed the present

application seeking amendment of the application for condonation of

delay invoking provisions of Order VI Rule 17 read with Section 151

of the Code of Civil Procedure (hereinafter to be referred as 'CPC').

2. At the outset, provisions of Order VI Rule 17 CPC are

not applicable for amendment of an application filed under Section 5

of the Limitation Act. Order VI CPC speaks of pleadings. As per

Order VI Rule 1 CPC pleadings mean plaint or written statement.

However, wrong mentioning or non-mentioning of provisions of law

is not fatal to the maintainability of the application as the Court has

inherent jurisdiction to pass appropriate orders on an application of

the party or on oral submissions made before the Court during the

course of arguments. Substance of the application is to be seen.

Therefore, this application is considered to be an application under

Section 151 CPC only.

3. In para-7 of the application, appellants have sought

deletion of para-8 and prayer clause of CM No. 15073/2004 to be

replaced by para-8, as suggested in this para. One of the

amendments sought is that application to be treated as an application

for condonation of delay in filing the appeal as fresh institution,

because the objections could not be removed within thirty days, the

period prescribed for removal of objections. Second amendment

sought is for recording the correct computation of period of delay in

filing the appeal, which according to the appellants is 158 days.

Third amendment sought is that delay in filing the appeal was not

intentional and due to reasons beyond the control of the appellants

and consequent amendment in the prayer clause.

4. Respondents have seriously contested this application.

However, since amendments sought relate to admitted principles of

law, no prejudice is likely to be caused to the opposite party if

amendment is allowed. Therefore, amendment sought for is hereby

allowed. Since proposed amended application has not been annexed

to this application, to avoid further delay in the proceedings of the

case, amendment as suggested in para-7 of this application would be

considered by the Court while deciding application for condonation

of delay in filing the appeal.

C.M.No. 15073/2004 (U/s. 5 of the Limitation Act)

5. Appellants have sought condonation of delay in filing

of the appeal after removal of objections on the grounds that, appeal

was initially filed within the period of limitation but, on account of

Summer vacations, Registry was closed till 2nd July, 2004.

Thereafter Registry raised certain objections and after removal of

objections, appeal was refiled on 20th July, 2004. Registry again

returned the appeal on 22 nd July 2004 as objections had not been

removed, with directions to remove them within a week.

6. It is alleged that the file containing the appeal was misplaced

in the office of counsel for the appellants, Mr.Raman Duggal and all

necessary papers and documents relating to the appeal were in the

said file. This resulted into non-filing of the appeal in time. When

appellants found alternative documents, they refiled the appeal on 5 th

October, 2004. Finding the appeal not in order, Registry again raised

few objections on 5th October, 2004. Appellants took time to

reconstruct the misplaced file to remove the objections and appeal

was refiled on 20th November, 2004. It was on an objection of the

Registry that appellants filed this application seeking condonation of

158 days delay in filing the appeal.

7. Mr.Arun Khosla, counsel appearing for the

respondents has submitted that appellants have sought condonation

of delay in filing the appeal alleging false grounds as the documents

annexed to the appeal were available with the appellants when

appeal was filed and refiled. He has submitted that appellants have

failed to show any sufficient cause for not filing the appeal within

the period of limitation and therefore application deserves dismissal

and the appeal also deserves dismissal as having become barred by

period of limitation.

8. There is no dispute that if the appeal is not refiled

within the period of thirty days in accordance with Part G, 'Rules

relating to proceedings in the High Court of Delhi', Chapter 1, Rule

5 Part A (a) contained in Delhi High Court Rules, filing of

memorandum of appeal, after removal of objections, has to be

considered as fresh institution.

9. One of the causes for not refiling the appeal within the

time prescribed by the Registry is that appeal file was misplaced in

the office of Mr.Raman Duggal Advocate, the then counsel for the

appellants as all necessary papers and documents were in the said

file. Perusal of the record indicate that memorandum of appeal is

annexed with the certified copy of the impugned order dated 1 st

March, 2004 along with other documents, which were received by

the appellants on 27th March, 2004 from the Copy Agency

Department of the District Court. Therefore, it cannot be accepted

that appeal could not be refiled in time because it was misplaced and

appellants took some time to get the documents prepared. It is not

clear from the application if at all appellants had applied for the

certified copies of the documents afresh, earlier ones having been

misplaced the by the counsel. Appeal was filed on 24th May 2004,

annexed with documents and an affidavit of the appellant Dinesh

Kumar. Same paper book was refiled on 5th October. Thus, it is

clear that Appellants throughout were in possession of the documents

annexed to the appeal. Obviously, appeal file was available with the

appellants or their advocate.

10. To my mind, a sham and baseless reason has been

assigned by the appellants for not filing the appeal within the period

prescribed as per Rules. Para-5 of the application suggests that the

misplaced file was reconstructed for removal of the objections and

after it was reconstructed on 5th October, 2004 and therefore till 20th

November 2004, appeal could not be refiled. This is not borne out

from the record as the appeal filed on 28 th May 2004, was the same

appeal filed before this Court and not any other reconstructed file/

appeal. It is not out of place to mention here that even the true

copies of the statements of the witnesses and other documents

annexed to the appeal are all attested by the Advocate on 24 th May,

2004. Application is not supported by an affidavit of Mr.Raman

Duggal, Advocate to certify that the file was misplaced by him in his

office. It is pertinent that appeal does not bear signatures of any of

the appellants. Even the affidavit attached to the application is that

of the clerk of the counsel.

11. Principles as laid down in " Indian Statistical Institute

Vs/ M/s. Associated Builders & Ors." , AIR 1987 SC 335 and

"Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji &

Ors.", AIR 1987 SC 1353 are not disputed and are being followed by

the Court while deciding an application under Section 5 of the

Limitation Act.

12. In view of my discussion as above, I conclude that

appellants have failed to show sufficient cause for not filing the

appeal within the period of limitation.

13. Court generally adopts a liberal approach while

considering an application for condonation of delay in filing the

memorandum of appeal. However, Court has to be more strict where

mandatory documents are required to be filed with the memorandum

of appeal. The approach to be adopted by the Court is required to be

different in each case depending upon the nature of objections raised

by the Registry and required to be removed by the appellants.

Objections raised by the Registry in this case were mandatory in

nature. Memorandum of appeal was presented without affixing the

requisite court fee. Order of the Civil Judge was not filed. Without

removing the objections, it was refiled on 22nd July, 2004.

Objections were initially removed on 29 th November, 2004.

14. As per Part G, 'Rules relating to proceedings in the

High Court of Delhi', Chapter 1, sub-rule 2, every second

memorandum of appeal is required to be accompanied by copies of

decree and judgment as prescribed by Order 47 Rule 1 CPC and

documents prescribed by the said order. A copy of the judgment of

the first instance, unless dispensed with, by the Court is necessary.

An appeal is incompetent when filed without certified copies of the

Trial Court's judgment and decree as it is not a valid presentation of

the appeal. It is noted that appellants have neither filed certified

copy nor true copy of the judgment and decree of the first instance.

No appeal can be entertained without payment of sufficient court fee.

Therefore, there was no proper presentation of the appeal till the

court fee was paid. It was only after removal of the objections that

the appeal was registered by the Registry.

15. Under these circumstances, I find no merits in the

application. Appellants instead of coming to the Court with true and

correct facts and sufficient reasons for condonation of delay have

made every endeavour to make out a case on false facts to their own

knowledge with a view to waylay the Court. Hence, application is

hereby dismissed with costs of Rs.15,000/-.

RSA NO. 237/2004

16. Since appeal is barred by period of limitation, it is not

maintainable. Hence, is accordingly dismissed.

ARUNA SURESH, J.

JULY 16, 2010 sb