Govt. Of Nct Of Delhi & Ors. vs Rajeev Mehra
2011 Latest Caselaw 1418 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.77/2011

%                                                 10th March, 2011

GOVT. OF NCT OF DELHI & ORS.                     ...... Appellants
               Through:   Ms. Ruchi Sindhwani, Advocate



                          VERSUS


RAJEEV MEHRA                                           ...... Respondent
                    Through:    Mr. Pramod Kr. Sethi, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the 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?


VALMIKI J. MEHTA, J (ORAL)



1.            Learned counsel for the respondent at the outset has

submitted that the delay in filing of the appeal condoned by order

dated 3.2.2011 in CM No.2332/2011 be recalled on his oral prayer

inasmuch as liberty was given to the respondent to apply for variation.

I have therefore heard the arguments of the learned counsel for the

respondent on the issue of condonation of delay. The learned counsel

for the respondent argues that the facts as stated in the application

themselves show that there is administrative lethargy and lack of

explanation with respect to the delay in filing of the appeal. I note that

RFA No.77/2011                                              Page 1 of 5
 in this case the appeal ought to have been filed by 1st week of July,

2010, however, the same was filed only on 20.1.2011.            There is

therefore a delay of about 6 months in filing of the appeal. Learned

counsel for the respondent has relied upon State of Bihar & Anr. Vs.

Pooran Chand Mahto AIR 1998 Patna 171 and State of UP vs.

Satya Narain 1995 AIHC 677 to argue that delay should not be

condoned merely because the appeal is filed by a Government

Department and red tapism cannot mean that there is a right for

condonation of delay.      Of course, there is no dispute to this

proposition, however, condonation of delay with respect to each case

has to be seen in the facts of each individual case coupled with the fact

that to a Government department an extra lee-way is to be granted-

vide the decisions of the Supreme Court in State of Nagaland vs.

Lipok AO 2005 3 SCC 752 and State vs. Ahmad Jaan 2008 14

SCC 582. In the present case, one of the issues is unjustified loss of

public monies/revenue because decree is passed for monies in favour

of the respondent/plaintiff with respect to work which was not

performed under the contracts.        In case, the money decree is

sustained, there would be loss of public monies of over 5 lakhs of

rupees. In the interest of justice, I therefore condone the delay subject

to payment of costs of Rs.15,000/-. Let the appeal be now heard on

merits.


RFA No.77/2011 & CM No.2333/2011(Order 41 Rule 27 CPC)



RFA No.77/2011                                              Page 2 of 5
 2.          The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908(CPC) is to the

impugned judgment and decree dated 25.3.2010 whereby the suit of

the plaintiff for recovery has been decreed on account of monies which

were claimed by the respondent/plaintiff for having executed the job of

painting of walls in hospitals, family welfare centres and dispensaries

in Delhi.


3.          Before   the   Trial   Court,   the   appellants/defendants

contended that instead of the work of 2,50,000/- square ft. of painting,

only 10 to 15% of the work was executed. Therefore a committee was

constituted in the year 1995 and accordingly a report was made on

30th March, 1995 which found that only 10-15% of the work was done.

Before the Trial Court, the appellants/defendants failed to file this

report and therefore the suit of the respondent/plaintiff was decreed. I

am constrained to note that the conduct of the concerned officials of

the appellants leave a lot to be desired.    Firstly, there were certain

certificates filed by the respondent/plaintiff claiming that work was

done and which were passed by no less than the Deputy Director

which was however negated by the report of the Committee stating

that barely 10 to 15% of the work was done. Not only this even after

taking up a stand that there existed a Committee Report dated 30 th

March, 1995, that report was not filed in the Trial Court leading to the

suit of the respondent/plaintiff being decreed. It is only in appeal now

that an application is filed under Order 41 Rule 27 CPC for bringing on

RFA No.77/2011                                             Page 3 of 5
 record this document dated 30th March, 1995. In fact this appeal itself

was filed with a delay of about 6 months and which has been condoned

by me subject to costs.          The aforesaid facts create a sense of

uneasiness that possibly there seems to be somehow or the other an

endeavour    of   certain   officials   of   the   appellants   to   help   the

respondent/plaintiff.   However, this Court is guided only and only by

the interest of justice and loss of public revenues. To this end, Order

41 Rule 27 CPC prescribes that the Court can sue moto seek additional

evidence in the interest of justice and to clarify the facts which are

otherwise stated on record. The factum of the report dated 30.3.1995

existing is stated in the pleadings by the appellants/defendants in the

Trial Court, which report, is already stated, was not filed and exhibited

in the Trial Court.


4.           Accordingly, I allow the application under Order 41(27) CPC

with further costs of Rs.25,000/- payable to the respondent for the

delays which will be caused in further trial of the case. The Head of

the Department of Health and Family Welfare of the Government of

National Capital Territory of Delhi is at liberty to deduct costs as

granted by today's order from the salaries of the concerned officials

who may be guilty of lapses resulting in the present situation.


5.           Accordingly, this appeal is disposed of by remanding the

same    by allowing     of the    CM No.2333/2011 and allowing the

appellants/defendants to file on record the Committee Report dated

30.3.1995 and lead such evidence so as to prove the contents of the
RFA No.77/2011                                                   Page 4 of 5
 report dated 30th March, 1995. Parties to appear before the Trial Court

on 20.4.2011. The respondent/plaintiff is free to raise all such pleas

and objections as available in law by leading its further evidence

including of cross-examination of the witnesses who would prove the

report dated 30th March, 1995. The appeal is disposed of accordingly.




March 10, 2011                                 VALMIKI J. MEHTA, J.

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