Mrs. Madhu Saxena vs Delhi Development Authority
2011 Latest Caselaw 3683 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 02.08.2011


+                    CM (M) No.881/2011 & CM No. 14186/2011

MRS. MADHU SAXENA                              ........... Petitioner
                 Through:           Mr. Rajender Aggarwal,
                                    Advocate.

                     Versus

DELHI DEVELOPMENT AUTHORITY          ..........Respondent
                 Through: Mr. Ajay Verma, 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 The order impugned before this Court is the order dated

04.03.2011 vide which the application filed by the petitioner

under Section 5 of the Limitation Act seeking condonation of delay

in filing the appeal before the first appellate Court had been

dismissed. There was a delay of 200 days. Delay had not been

condoned.

2 Record shows that the present suit has been filed by the

petitioner for declaration and injunction. The contesting

respondent is the DDA. This suit had been dismissed in default on

02.08.2008 for non-prosecution. Application under Order 9 Rule 9

of the Code of Civil Procedure (hereinafter referred to as the

'Code') had been filed on 20.11.2008 i.e. after a delay of 80 days.

This application was dismissed on 23.02.2010; suit accordingly

stood dismissed. The appeal was filed before the first appellate

Court; the appeal was delayed by a period of 200 days; along with

this appeal, an application under Section 5 of the Limitation Act

had been filed. The impugned order had refused to condone the

delay. The averments made in the application under Section 5 of

the Limitation Act filed before the first appellate Court are

relevant. The explanation tendered in not filing the appeal in time

is contained in paras 3 to 5. Contention is that the petitioner could

not contact her counsel for a long time as he was out of station;

when she contacted her counsel she was told that a certified copy

of the order has to be applied for which was made available in

April, 2010; thereafter the petitioner could not contact her

counsel for a long period because of illness of her husband who

had undergone bypass surgery twice; the petitioner was

depressed and lost track of the case. The impugned order has

noted that no record about the medical condition of the husband

of the petitioner has been placed on record. The impugned order

had also correctly appreciated that although the principle

contained in Section 5 of the Limitation Act has to be construed

liberally and substantial justice should be advanced but at the

same time the Court must keep in mind that the litigant before the

Court is bonafide and no negligence or inaction is imputable to

him.

3 Record clearly speaks otherwise. It is not only at the initial

stage at the time when the suit had been dismissed in default that

the plaintiff was negligent and inactive; this conduct of the

petitioner continued even upto the appellate stage. There was no

plausible explanation furnished by him for seeking condonation of

delay of 200 days in filing the appeal against the order dismissing

his suit under Order 9 Rule 9 of the Code. The impugned order

suffers from no illegality; it calls for no interference.

4      Dismissed.



                                            INDERMEET KAUR, J.
AUGUST 02, 2011
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