Delhi High Court
Sumer Chand Gupta vs Inder Kumar on 6 May, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA NO. 7/2010
Date of Decision: May 06, 2010
SUMER CHAND GUPTA ..... Appellant
Through: Mr. D.S. Patial, Advocate
versus
INDER KUMAR ..... Respondent
Through: Mr. Shiv Charan Garg,
Adv. with Mr. Imran Khan,
Adv.
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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)
1. Appellant is the brother of Respondent Inder Kumar, since
deceased, now being represented by his legal heirs as
Respondents. Inder Kumar claimed that he was the owner of
property No.7309/2, Prem Nagar Delhi and had permitted his
brother/appellant to live in the said property. He claimed
ownership of the property by virtue of a Will dated
25.01.1993 executed by Smt. Kashmiri Devi, mother of the
parties. Since appellant failed to vacate the premises, Inder
Kumar filed a suit for possession, permanent and mandatory
injunction and for recovery of damages. The Trial Court
decreed the suit of the Respondent, keeping the question of
ownership of the Petitioner open. The appellant filed Regular
Civil Appeal No.17/2008 on 25.10.2008 along with an
application under Section 5 of the Limitation Act seeking
condonation of delay in filing the appeal. The Appellate Court
dismissed the application, vide impugned order dated
6.10.2009.
2. Mr. D.S. Patial, learned counsel for the appellant has
submitted that substantial question of law as suggested in para
7 of the appeal are required to be formulated. He has
submitted that the Appellate Court did not consider „sufficient
cause‟ as shown by the Appellant for delay in filing the
appeal, which if considered, would have entitled the appellant
to condonation of delay. It is further argued that appellant
was unwell and therefore appeal could not be filed in time.
3. Submissions made by the counsel for the appellant are refuted
by Shiv Charan Garg counsel for the Respondent. He has
submitted that in the application for condonation of delay,
appellant had not taken any ground of his sickness which
could be considered as sufficient cause for condonation of
delay.
4. The Appellate Court while dismissing the application
observed:-
"...The medical ground as urged on behalf of
the appellant has been placed on record for the
first time today. The consideration of his being
senior citizen is also immaterial because it is the
majesty of law which shall prevail and not the
emotions but the senior citizen must be
facilitated by hearing their respective claims as
soon as it is possible so that they may get their
claims decided speedily which has been done
by me in this case. Admittedly, the time of
filing the appeal has already expired before
applying for certified copy of the impugned
judgment and decree and it is nowhere
mentioned in the application as to what
occasioned the appellant on 24.10.08 that he
was seeking the advice for filing the appeal on
that very date and not prior to that date. No
explanation has comeforth as to how the
photocopy of the impugned judgment and
decree dated 4.4.08 came in his possession on
the basis of which he filed this appeal and
subsequently filed the certified copy which was
taken subsequently in time. The law of
limitation does not provide for covering the
period of limitation or giving sufficiency of
reasons for delay by applying or obtaining the
certified copies again and again. In these
circumstances, even after taking the most liberal
considerations in my mind, I see no cogent and
plausible reason for condoning the delay in
filing the present appeal. Hence, the application
of the appellant under Section 5 of the
Limitation Act is hereby dismissed. ........"
5. The impugned judgment and decree is dated 12.03.2008.
Appellant applied for certified copy of the judgment and
decree on 24.10.2008 which was prepared on 24.11.2008.
Appeal was filed on 25.10.2008. Thus, it is clear that
appellant applied for certified copy of the impugned judgment
and decree just one day before filing of the appeal. Therefore,
the appeal was filed without the certified copies of the
judgment and decree without compliance of mandatory
provisions of law. Besides, appellant applied for certified
copy after the expiry of period of limitation for filing the
appeal, which was 30 days before the ADJ. Therefore, the
appellant was not entitled to take any protection under Section
12 of the Limitation Act.
6. As regards appellant having suffered heart-ailment, no such
plea was raised in the application but some photocopies of the
medical prescription have been produced before the Court at
the time of submission. Medical record of the appellant is
annexed to the appeal as Annexure C. Annexure C is
discharge summary which indicates the date of admission as
25.09.2003 and date of discharge as 27.09.2003. The decree
was passed on 12.03.2008. Over a period of five years, the
appellant must have been under medical treatment if he
continued to be a heart patient. Other documents annexed are
the prescription slips dated 22.09.2003 and 20.09.2004. Thus,
it is clear that appellant failed to produce any medical record
to show that he was suffering from some serious ailment after
the passing of the decree and therefore could not file the
appeal in time.
7. True that while considering application for condonation of
delay, the Court has to adopt a liberal approach. However,
the Court has to see sufficient reasons while deciding
application for condonation of delay. A valuable right
accrued in favour of the Respondent when appeal was not
filed within the period of limitations as Respondents had
accepted that no appeal had been filed challenging the
judgment and decree of the Trial court. Appellant in this case
cannot even claim ignorance of law as he was fully assisted
by proper legal advice.
8. Under these circumstances, I find no reason to interfere in the
impugned order of the Trial Court when it dismissed the
appeal being barred by period of limitation. The Appellate
Court did not consider the merits of the appeal in view of its
holding that the appeal was barred by period of limitation.
9. Coming to the suggested substantial question of laws, at the
outset, it can be said that the questions as formulated,
nowhere suggests that they are substantial question of law. In
fact the question as suggested in no manner can be considered
as question of law as they have no bearing to the facts and
circumstances of the case.
10. It was pointed out by the counsel for the Respondent that
genuineness of the Will, on the basis of which Respondent
sought ownership right, was accepted by the Court in view of
the acceptance of the Will by the appellant and because of this
acceptance; the Court observed that no probate was required.
Be that as it may, the Court has granted the decree without
deciding the title of the Respondent in the suit property while
holding that the appellant was the licensee of the Respondent
in the suit property and was liable to vacate the same.
Apparently no strong case has been made out in the appeal
which warrant this Court to set aside the impugned order and
condone the delay in filing the first appeal.
11. Hence, I find no reason to interfere in the impugned order of
the Trial Court, the appeal being without any merit is hereby
dismissed.
ARUNA SURESH, J.
MAY 06, 2010
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