D.D.A. vs Adhar Stumbh Township P. Ltd.
2010 Latest Caselaw 5220 Del

53
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      RFA 322/2009

%                               Judgment Delivered on: 18.11.2010

D.D.A.                                          ..... Appellant
                         Through:     Mr.Bhupesh Narula, Advocate

                   versus

ADHAR STUMBH TOWNSHIP P. LTD.               ..... Respondent
              Through:  Mr.V. Vivekanand, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

          1. Whether the Reporters of local papers may be allowed to
             see the judgment?
          2. To be referred to Reporter or not?
          3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. (ORAL)

CM.No.12841/2010

1. This is an application seeking condonation of 237 days delay in

filing the appeal against the judgment dated 28.08.2008,

wherein the learned trial judge had ordered recovery of

`4,89,346/- from the appellant herein along with an interest @

6% per annum. It is submitted by counsel for the appellant

that the appellant applied for certified copy of the judgment on

29.08.2008 which was made available to the appellant on

25.10.2008, however the appeal was filed on 28.08.009.

Counsel for the appellant submits that there are sufficient

grounds to condone delay in filing the appeal, and has relied

upon paragraphs 5 to 9 of the application, which are

reproduced below:

"5. That the file was reviewed and note sheet was prepared for the assessment of the judgment whether is being correct or not the same was prepared on 29/12/2008 and was placed before the engineering wing. The Asstt. Engineer on 2/1/2009 has opined that the factually the judgment was not correct as the record was called for 2/1/2009, all the records were arranged for and all the measument books record to the said book was procured from different engineers work at site during the said period and was collected by 3rd and the same was placed before the Assitt. Engineer on 5/3/2009. The said Assitt. Engineer who was actually associated with the work and whose supervision work was executed was be called for actual may the said judgment. The concerned Jr.Engineer could be traced out only by 17th May, 2009 through after confirmation through various deptt. The discussion were took place as Sh.J.K. Garg have produced the record before him. It was decided that the judgment passed by the Hon‟ble Court is factually incorrect and are against special conditions of the Agreement and hence the same was decided on 26/5/2009 for challenging the said judgment for appeal. The case was prepared by the Assitt. Engineer and Executive Engineer and the same was forwarded on 3/6/2009. The case was further prepared to be put up before the Chief Engineer on 8/6/2009. After examining the same, the Chief Engineer has passed for following appeal on 15/6/09. The said judgment was placed before the Chief Legal Advisor on 15-6-09. CLA was of the view that the same would be reviewed and discussed again so that DDA did not lose the interest. The case was again discussed and has advised of CLA the same was forwarded. The recommendations were again considered decided that the appeal preferred of the case made again which prepared and discussed as it is technically matter of the facts of the Chief Engineer. The case was again prepared on 14-7-09 and was discussed with the Sptd. Engineer who has thus alongwith Engineers has got prepared report on 17-7- 2009. It was further decided on 18-7-09 that except claim No.2. All the claims namely 1, 3 & 4 be challenged before the Hon‟ble Court. The file was put-up before the Executive Engineer on 20-07-2009 and the same was approved by the Suptd. Engineer on 20-7-09 and the same was also discussed with the Chief Engineer on 20.- 7-09 itself.

9. That the file was placed before CLA on 20-7-09 who thus has appointed Panel lawyer on 22/7/2009. The case was thereafter forwarded to the panel lawyer on 23/7/2009. The panel lawyer has called all the records from the office of DDA for filing of appeal and the same was placed before counsel on 28/7/2009. And after going through he records the court fees has been called from respondent and the same has been allowed on 24-08-9.

Hence the appeal has been prepared and has been filed on 28-8-09."

2. In support of the grounds raised in this application, appellant

has produced in court the original record, to show that the file

was being moved from one desk to another, to ascertain

whether the appeal should be filed or not and it was decided

only on 29.12.2008 to file an appeal.

3. Counsel for the respondent has opposed this application

primarily on the ground that the appellant had in fact no

intention of filing the appeal and the appellant was not even

aware that the judgment and decree had been pronounced. He

also submits that this is evident from the fact that before the

executing court a statement was made on behalf of the

appellant that the entire amount would be paid to the

respondent. He further submits that simply because the

appellant is a statutory body, does not mean that the Court

should take lenient view of the matter. It is also submitted that

the original record produced, would show that in fact at one

stage the approval was granted to make the payment. Counsel

for the respondent further relied on a judgment of the Division

of this Court in Delhi Development Authority Vs. Bhasin

Associates reported at 114 (2004) DLT 484 (DB) and more

particularly at paragraphs 2 and 3 thereof, which reads as

under:

"2. Supreme Court in State of Haryana Vs. Chandra Mani and Ors. AIR 1996 SC 1623 observed that taking into consideration that the law of limitation and sufficient cause as has to be shown by a private party need not be applied with such rigours, at the same time it does not absolve the appellant from its obligation to be diligent in

prosecuting the matter. No material was placed before the learned Single Judge giving any explanation. Reliance was placed by the learned Single Judge on Shri N. Paul Babuta Vs Union of India and Anr. 1999 All India High Court Cases 495 that by engaging counsel, party to the case is not relieved of his duties and obligations in the matter. The application and the rejoinder filed by the appellant is totally silent as to what steps were taken and what correspondence was done for the recovery of the file.

3. We have perused the affidavit dated 27.11.2003 filed by appellant pursuant to the order passed by this Court. The bald stand taken by the deponent is that no communication was issued by the legal department to the engineering department. It was the duty of the engineering department against whom an award was given and as objections at their behalf were filed. They simply cannot pass on the responsibility to another department, as if it were a foreign department. The offices of the law department ad the engineering departments are in Delhi and if the file was not received from the counsel, what prevented appellant from appearing in the Court and submitting before the Court that the file has not been received from the earlier counsel. This attitude of shifting the responsibility either on the counsel or by one department to another is totally reprehensible and amounts to lackluster approach on the part of the appellant. The learned Single Judge has also noted that the appellant was aware of the pendency of the case which would be evident from the fact that the law officer of the appellant appeared in Court on 14.9.2001 and time was taken for engaging a counsel. The attitude of the appellant is not only callous, it is indifferent and negligent also. It is only on account of such attitude dates after dates are taken by the departments and the dockets of the Court remain large. The learned Single Judge has also ordered in the impugned judgment that despite the order of the Court passed on 7th August, 2003, the respondent DDA, (i.e. appellant before us) failed to place on record the correspondence between the department and the panel lawyer. It was only when notice of execution proceedings were served upon the appellant, the appellant woke from deep slumber. In Chandra Mani's case (supra) the Supreme Court way back in 1996 directed the authorities like appellant as under:

''The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give

appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any."

4. Counsel for the appellant has relied upon the decision in DDA

Vs. Vijay Pal Singh & Ors. reported at 149 (2008) DLT 249

and submitted that the facts of the aforesaid case are identical

to the facts of this case and accordingly the delay in the present

matter must also be condoned.

5. The position of law with regard to condonation of delay is well

settled. The decision of Supreme Court in the case of Balwant

Singh vs. Jagdish Singh & Ors., reported at 2010 (6) SCALE

749, while deciding an application under Order XXII Rule 9 CPC

and Section 5 of the Limitation Act, it was held as under:

13. ... We may state that even if the term „sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of „reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the

explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR1962 SC 361] this Court took the view:

"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.

It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing

further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."

6. Further, with regards to condonation of delay in filing an appeal

on behalf of the government, it has been held by Supreme

Court in the case of State of Bihar & Ors. Vs. Kameshwar

Prasad Singh & Ors. (2000) 9 SCC 94 and more particularly

para 12 thereof:

"12. After referring to the various judgments reported in New India Assurance Co. Ltd. v. Shanti Misra, Brij Indar Singh v. Kanshi Ram3, Shakuntala Devi Jain v. Kuntal Kumari, Concord of India Insurance Co. Ltd. v. Nirmala Devi, Lala Mata Din v. A. Narayanan, State of Kerala v. E.K. Kuriyipe, Milavi Devi v. Dina Nath, O.P. Kathpalia v. Lakhmir Singh9, Collector, Land Acquisition v. Katiji, Prabha v. Ram Parkash Kalra, G. Ramegowda, Major v. Special Land Acquisition Officer, Scheduled Caste Coop. Land Owning Society Ltd. v. Union of India, Binod Bihari Singh v. Union of India, Shakambari & Co. v. Union of India, Ram Kishan v. U.P. SRTC and Warlu v. Gangotribai this Court in State of Haryana v. Chandra Mani held: (SCC p. 138, para 11) "11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court -- be it by private party or the State -- are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file- pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by

officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay -- intentional or otherwise -- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression „sufficient cause‟ should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detention of sufficient cause for explaining every day‟s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."

7. Applying the settled position of law to the facts of this case, it

may be noticed that file was received in the office of DDA on

30.10.2008 and the noting was made on the said date.

Thereafter opinion was sought from the lawyer as to what is the

last date of limitation, and thereafter the file had been marked

from one branch to another. It was only after seeking an

opinion from the junior engineer, incharge of the project, that it

was decided that an appeal may be filed.

8. In the case Collector, Land Acquisition, Anantnag Vs. Mst.

Katiji, reported at 1987 SC 1353, the Supreme Court has laid

down various principles to show that in case the delay is not

condoned, it would result in a meritorious matter being thrown

out at the threashold and cause of justice being defeated; and

also held that where substantial justice and technical

considerations are pitted against each other, cause of

substantial justice deserves to be preferred. In the case State

of Bihar & Ors. (Supra) the Apex Court has dealt with a

matter with regard to condonation of delay where the State was

an appellant. While considering the fact that the State is an

applicant, praying for condonation of delay, it is common

knowledge that on account of impersonal machinery and the

inherited bureaucratic methodology imbued with the note-

making, file-pushing, and passing-on-the-buck ethos, delay on

the part of the State is less difficult to understand though more

difficult to approve, but the State represents collective cause of

the community; and in the ultimate analysis the sufferer is the

public interest.

9. It has been repeatedly held by the Supreme court of India that

the words "sufficient cause" should receive a liberal

interpretation so as to advance the substantial justice.

10. After perusal of the original record, I am satisfied that there is

sufficient cause for condonation of delay in filing appeal. The

application deserves to be allowed.

11. Application stands disposed of.

RFA 322/2009

12. Issue notice to show cause as to why the appeal be not

admitted. Mr.Vivekanand, advocate accepts notice

13. The amount stands deposited before the trial court.

14. Admit.

15. List in due course.

CM.No.12842/2010 (STAY)

16. Notice. Mr.Vivekanand, advocate accepts notice.

17. List on 03.03.2011.

G.S. SISTANI, J.

November 18, 2010 'ssn‟