Delhi High Court
Naval Kumar vs Gurmeet Kaur on 10 November, 2010
Author: G. S. Sistani
32.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 716/2010
% Date of Judgment 10th November, 2010
NAVAL KUMAR ..... Appellant
Through : Mr. S.K. Singh and Mr. R.S. Rana, Advs.
versus
GURMEET KAUR ..... Respondent
Through : Mr. P.K. Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed
to see the Judgment ?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J (Oral)
CM NO.18024/2010.
1. This is application filed by the appellant under Order 41 Rule 3A
read with Section 5 of the Limitation Act seeking condonation of
34 days delay in filing the present appeal.
2. The grounds for delay have been set out in paragraphs 11 and 12
of the present application, which are reproduced below:
"11. That for the purpose of preferring the present appeal the
Appellant had already applied for certified copy on 24 th of May,
2010 itself. Accordingly, the certified copy was prepared on 31 st
May, 2010 as approximately 8 days time took while obtaining
certified copy.
12. That after coming to know about the impugned judgment/decree
the Appellant could not contacted the counsel immediately for
modalities of preferring the appeal. Furthermore, the appellant
for considerable period of time was not in Delhi due to his
personal reason. In these circumstances the Appeal could not
been preferred in time. The non-filing of Appeal within stipulated
period of time is neither intentional nor deliberate and the delay
occurred in filing the Appeal is liable to be condoned."
3. Learned counsel for the appellant submits that after passing of
the impugned judgment/decree dated 21.5.2010 the appellant
could not contact the counsel for preferring an appeal against the
impugned judgment/decree and further the appellant was out of
RFA.No.716/2010 Page 1 of 4
Delhi for a considerable period due to his personal reasons.
Counsel for the appellant further submits that a liberal view
should be taken in this matter and delay should be condoned.
4. Mr. P.K. Bansal, Advocate, enters appearance on behalf of the
respondent and has vehemently opposed the present application
for condonation of delay on the ground that the appellant has
failed to show sufficient cause for condoning the delay.
5. I have heard counsel for the parties, who have taken me through
the application. The basic facts are not in dispute that the
judgment/decree was passed on 21.5.2010. Present appeal has
been filed on 1.10.2010 after a delay of 34 days.
6. I have carefully perused the application filed under Section 5 of
Limitation Act, the same is vague and lacks material particulars. It
is not disputed that appellant was aware of the judgment and
decree dated 21.5.2010. It is nowhere stated in the application as
to why the appellant could not contact his counsel after passing of
the impugned judgment/decree dated 21.5.2009 and further
neither any period has been mentioned during which period the
appellant was out of Delhi nor any reason, due to which the
appellant was out of Delhi, has been mentioned in the application.
The present application does not state as to where the appellant
was during the period. A reading of the application shows that the
application is extremely casual in nature and lacks material
particulars and, thus, would disentitle the appellant from seeking
discretionary relief of condonation of delay.
7. In the case of P.K. Ramachandran Vs. State of Kerala & Anr.
(1997) 7 SCC 556, the Supreme Court has held that an essential
pre-requisite of exercising discretion to condone the delay is that
RFA.No.716/2010 Page 2 of 4
the Court must record its satisfaction that the explanation for
delay was either reasonable or satisfactory.
8. While dealing with an application for condonation of delay under
Section 5 of the Limitation Act, the Court must bear in mind two
important considerations. Firstly, the expiration of limitation for
filing an appeal gives rise to a legal right to a decree-holder to
treat the decree as binding between the parties and this right
should not be lightly disturbed. Second, if sufficient cause is
shown for condonation of delay, the delay should be condoned. It
has been repeatedly held by the Supreme Court of India that the
words "sufficient cause" should receive a liberal construction so
as to advance substantial justice. In the same breath, it has been
held that the discretion should be exercised when there is no
negligence or inaction nor want of bona fides imputable to the
appellant the Court must be satisfied that there was due diligence
on the part of the appellant.
9. The facts of this case are to be considered on the touchstone of
the broad principles which have been laid down by the Supreme
Court of India while considering the application for condonation of
delay. The conduct of the appellant in the present case shows
total callousness and negligence. The explanation rendered by the
appellant that the appeal could not be filed as after passing of the
impugned judgment/decree dated 21.5.2010 the appellant could
not contact the counsel for preferring an appeal against the
impugned judgment/decree and further the appellant was out of
Delhi for a considerable period due to his personal reasons does
not inspire confidence. I am of the view that appellant has
miserably failed to show any cause, much less a sufficient case for
RFA.No.716/2010 Page 3 of 4
condoning the delay in filing the present appeal. Extracted
paragraph of the application does not spell out any reason or
cause for condonation of delay. In these circumstances the Court
is unable to satisfy itself that delay was caused due to sufficient
reasons. Accordingly I find no grounds to entertain the present
application, the same is accordingly dismissed.
RFA 716/2010 & CM NO.18025/2010 (STAY).
10. Appeal as well as application stands dismissed in view of the
orders passed in the application for condonation of delay.
G.S. SISTANI, J.
November 10, 2010
'msr'
