Delhi High Court
Sh. Prakash Chand vs M/S Texmaco Limited on 28 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28.04.2011
+ R.S.A.No. 97/2007
SH. PRAKASH CHAND ...........Appellants
Through: Mr. S.K. Taneja, Sr. Advocate
with Mr. Rakesh Kumar,
Advocate.
Versus
M/S TEXMACO LIMITED .......Respondent
Through: Mr. Amit Sibal, Advocate along
with Ms Priyanka Gupta and
Mr. Saurabh Seth, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers 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
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
19.10.2006 which had endorsed the finding of the trial judge
dated 20.07.2005 whereby the suit filed by the plaintiff M/s.
Texmaco Limited seeking recovery had been decreed in their
favour. This was a suit under Order 37 of the Code. The
application for leave to defend preferred by the defendant had
been dismissed; decree had followed. In first appeal, the appeal
had been filed belatedly by 25 days. The application for
condonation of delay had been rejected; as a result the appeal
stood dismissed.
2. The plaintiff is a company registered under the Companies
Act, 1956. It has various units and is engaged in the business of
manufacturing and trading. M/s Birla Textiles was an independent
company; by virtue of a Scheme of Arrangement approved by the
High Court of Delhi in Company Petition No. 59 of 1982 on
03.10.1993, all rights and interests of the said company were
taken over by M/s Texmaco Ltd. Defendant had joined the
plaintiff company on 09.07.1969. He had been allotted a
residential accommodation Jhuggi, Khilonawala Bagh, Pambari
Road, Delhi (hereinafter referred to as `suit property‟) during his
service with the plaintiff; written contract dated 17.09.1991 was
executed between the parties. Defendant was to vacate the
property at the time of cessation of his service, failing which he
was to pay the damages @ Rs. 50/- per day for his unauthorized
use and occupation. The work of the plaintiff‟s mill was closed
down under the orders of the Apex Courts on 30.11.1996.
Defendant failed to vacate the suit property. Plaintiff sent legal
notice dated 06.11.2003 to the defendant demanding damages for
unauthorized use and occupation as also further damages @ Rs.
50 per day from the date of the institution of the suit till the actual
physical possession. This was a suit under Order 37 of the Code.
3. Application for leave to defend had been filed by the
defendant. The court was of the view that no triable issue has
been raised; it was moonshine. The suit was decreed for Rs.
30,500/- as damages/mesne profits as also Rs. 50 per day which
were awarded for the unauthorized use and occupation of the
accommodation from the date of filing the suit till the actual,
physical possession of same be handed over to the plaintiff.
4. The first appeal court had dismissed the appeal on the
ground that it was barred by limitation; there was a delay of 25
days; it was not condoned.
5. This is a second appeal. It had been admitted and on
02.05.2007, the following substantial question of law had been
formulated:-
"Whether the appeal filed by the appellant before
the First Appellate Court is barred by time?"
6. On behalf of the appellant, it has been urged that a valuable
right had been lost to the appellant and the court should have
favourably considered his application for condonation of delay
when he had filed the relevant documents i.e. his medical
certificate to substantiate his submission that he was ill in the
intervening period when he could not file the appeal. For this
proposition, reliance has been placed upon (2010) 6 SCC 786
Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors.
7. Learned counsel for the respondent has rebutted this
argument. It is pointed out that the terms „sufficient cause‟ as
appearing in Section 5 of the Limitation Act implies an adequate
and legal reason; delay cannot be condoned as a matter of right.
It is pointed out that in dealing with an application for
condonation of delay; the decisive factor is not the length of the
delay but the sufficiency of satisfactory explanation. To support
his submission, reliance has been placed upon the judgment
reported in (2010) 8 SCC 685 Balwant Singh Vs. Jagdish Singh &
Ors. To advance the same proposition, reliance has also been
placed upon another judgment reported in AIR 1962 SC 361
Ramlal, Motilal and Chhotela Vs. Rewa Coalfields Ltd; it is pointed
out that a right accrues to the opposite party when an appeal is
not filed within time, decree thus becomes binding on the parties;
delay in filing the appeal should not be condoned lightly.
8. Arguments have also been addressed on the maintainability
of appeal. It is pointed out that Apex Court in (2001) 1 SCC 469
Ratan Singh Vs. Vijay Singh & Ors had held that the dismissal of
an application for condonation of delay leading to the dismissal of
the appeal itself would not amount to a "decree"; as defined under
Section 2(2) of the Code of Civil Procedure (hereinafter referred
to as the „Code‟), it would not be amenable to the jurisdiction of
the High Court under Section 100 of the Code. To support this
submission, reliance has also been placed upon the full bench
judgment reported in AIR 1976 Calcutta 415 (1) Mamuda Khateen
and Others Vs. Beniyan Bibi and Ors. It is pointed out that in
(2000) 6 SCC 359 Kunhayammed and Ors Vs. State of Kerala &
Anr, while dealing with the doctrine of merger, the Apex Court
had held that this doctrine is not of universal or unlimited
application; the context and the facts of each case has to be seen.
It is pointed out that in the instant case, the first appellate court
had correctly dismissed the application seeking condonation of
delay; it had not delved into the merits of the case; the judgment
of the trial judge had not been considered on its merits; the
doctrine of merger would be inapplicable; the impugned judgment
dismissing the application for delay without delving into the
merits of the case was thus not a decree which had merged with
the judgment of the trial judge; the doctrine of merger is not
attracted.
9. The Supreme Court in (2005) 1 SCC 436 (also cited by the
learned counsel for the respondent) in Shyam Sundar Sarma Vs.
Pannalal Jaiswal and Ors had, in fact, considered the judgment of
Ratan Singh (supra) as also the full bench judgment of Calcutta
High Court (noted supra) and had held that where an application
seeking condonation of delay has been dismissed by an appeal
court on the ground of delay, it must be held that this dismissal
has, in fact, endorsed the finding of the trial judge on the merits
as well. In this case, the Apex Court had relied upon the
judgment of Sheodan Singh Vs. Daryao Kunwar reported in AIR
1966 SC 1332; (1966) 3 SCR 300; the relevant portion extracted
from the said judgment reads as follows:-
" We are therefore of opinion that where a decision
is given on the merits by the trial court and the
matter is taken in appeal and the appeal is
dismissed on some preliminary ground, like
limitation or default in printing, it must be held that
such dismissal when it confirms the decision of the
trial court on the merits itself amounts to the appeal
being heard and finally decided on the merits
whatever may be the ground for dismissal of the
appeal."
It is thus clear that the appeal was maintainable.
10. The second question which has to be answered by this court
is as to whether the first appellate court had exercised its
jurisdiction fairly and judiciously while dismissing the application
seeking condonation of delay. In this context, the factual dates
become relevant. They are undisputed. The judgment of the trial
court was delivered on 20.07.2005. The plaintiff had applied for
certified copy on 04.08.2005; the certified copy was ready on
10.05.2005 and received on 25.08.2005. The appeal was filed on
20.09.2005. There was a delay of 25 days. Reason was that the
plaintiff was ill in this intervening period i.e. between 18.08.2005
to 17.09.2005. The appellant came to know about the order only
on 18.09.2005 when he contacted his lawyer, thereafter, the
appellant had taken the file from his earlier lawyer and appointed
the new lawyer on 19.09.2005. Appeal was filed on 20.09.2005.
The impugned judgment had noted that the medical certificate
filed for the period of 18.08.2005 to 03.09.2005. Before this
court, it has vehemently been urged that the delay between
03.09.2005 to 20.09.2005 has been unexplained.
11. This court is conscious of the fact that a first appeal court is
the last court on facts; after the first appeal, in a second appeal, it
is only a substantial question of law which has to be examined. A
valuable right accrues to a party to have his lis decided before the
first appellate court; on the other hand, the right which has
accrued in favour of a party who has got a decree in his hand also
cannot be treated lightly. In the instant case, the purportedly
unexplained delay appears to be of 17 days. Medical certificate
between 18.08.2005 till 03.09.2005 is on the record. This shows
that the plaintiff was unwell in this period and he had been
advised medical rest. In the judgment of Improvement Trust,
Ludhiana (supra), the Apex Court has noted that the delay in filing
a first appeal must not be considered on hypertechnical grounds;
each case has to be weighed on its facts and circumstances; the
conduct, behaviour and attitude of appellant also becomes
relevant. The attitude of the appellant must not be callous and
negligent.
12. Keeping in view the aforenoted parameters, in the instant
scenario, this appears to be the case where the appellant cannot
be termed as either callous or a negligent litigant. In fact, he was
vigilant. Due to unfortunate circumstances, he was taken ill and
he could not contact his lawyer for the period between 18.08.2005
to 17.09.2005. He had otherwise been taking all requisite steps
for the purpose of filing the appeal. He had applied for the
certified copy of judgment in time. He had also received the same
in time. However, appeal could not be filed in time for the
reasons explained in his application under Section 5 of the
Limitation Act which had been preferred before the first appeal
court. Details are contained in paras 3 and 4. They are
reproduced as follows:-
"3. That the appellant was got ill on 18.08.2005 due to
which unable to contact his lawyer but his lawyer
applied for the certified copies of the impugned
order, therefore, the limitation also starts against
the appellant. The appellant was ill till 17.09.2005
due to which unable to contact his lawyer and failed
to file the appeal against the impugned order and
the appeal become time barred. The delay in filing
the present appeal is neither intentional nor
deliberate but due to the illness of the appellant.
4. The appellant contact his lawyer on 18.09.2005,
then his lawyer said him about the decree against
the appellant. Thereafter, the appellant taken the
file from his earlier lawyer and engaged a new
lawyer on 19.09.2005 to file the present appeal."
These averments are supported by the affidavit of the
appellant. It does give a fair explanation of the delay. The
financial burden has been cast upon the appellant by this decree
which has been passed in favour of the plaintiff company where he
was employed; he not having been able to get his lis decided on
merits, it would be a fit case where the matter is remanded back
to the District Judge for decision on merits. The delay in filing the
first appeal is accordingly condoned.
13. The parties are directed to appear before the District &
Sessions Judge, Tis Hazari at 10 p.m. on 05.05.2011 who shall
assign the matter to the concerned appellate court to decide the
case on its merit. The court shall positively endeavor to adhere to
the time schedule. With these directions, the appeal is disposed
of.
INDERMEET KAUR, J.
APRIL 28, 2011
ss
