Delhi High Court
Jaswant Singh vs Amar Nath Mehra (Since Deceased) ... on 6 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 06.05.2011
+ R.S.A. No.218/2010 & CM No. 21036/2010
JASWANT SINGH ...........Appellant
Through: Mr. Rajuddin Khan, Advocate
Versus
AMAR NATH MEHRA (SINCE DECEASED)
THROUGH HIS LR. ..........Respondent
Through: Mr.Satykam Saini, 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 Admit.
2 The following substantial question of law is emanated:-
"Whether the finding in the impugned judgment dated 17.08.2010
dismissing the appeal of the appellant/defendant on the ground of limitation
was a perverse finding and if so, its effect?"
3 Present appeal has impugned the judgment and decree
dated 17.08.2010 which had endorsed the finding of the trial
Judge dated 15.12.2009 whereby the suit filed by the plaintiff
Amar Nath Mehra seeking possession of damages/mesne profits
qua the suit property i.e. property No. 167, Jeewan Nagar,
Gurudwara Bala Sahib Road, Ashram, New Delhi had been
decreed in his favour.
4 The plaintiff claimed himself to be the owner of the suit
property. He had leased out this property to the defendant who
was an unauthorized occupant at a monthly rent of Rs.100/-
excluding water and electricity charges; the defendant inspite of
service had failed to appear before the trial court; he had been
proceeded ex-parte. The said order had not been challenged.
However, the defendant had cross-examined the sole witness of
the plaintiff. The decree had followed in favour of the plaintiff.
Relief of possession had been granted to him along with the
damages.
5 First appeal had been preferred. There was a delay of 81
days in preferring the first appeal. The impugned judgment had
not gone into the merits of the case; it had held that the „sufficient
cause‟ has not been explained by the appellant in preferring the
first appeal; he was not entitled to any relief; appeal had been
dismissed; necessary corollary was that the decree of the trial
Judge stood affirmed.
6 This is a second appeal. Learned counsel for the appellant
has urged that the finding in the impugned judgment is illegal as
the Court had failed to appreciate the detailed reasoning for not
filing the appeal in time. The impugned judgment had noted that
the delay in not filing the appeal in time had been imputed to the
two counsel who had been appearing on behalf of the defendant;
the judgment of Ram Kumar Gupta Vs. Har Prasad 2010 ALL India
Appeals Reported (Civil) 58 had also been relied upon to
substantiate his submission that a litigant should not be made to
suffer for the negligence of his lawyer. The perusal of the
impugned judgment shows that the Court had taken hyper
technical approach in dismissing the appeal; provisions of Section
5 of the Limitation Act had not been appreciated in the correct
perspective. This provision must be construed liberally so as to
advance justice; no litigant should be thrown out at the threshold
without affording him a fair opportunity of hearing. Delay as
explained in the application fil ed under Section 5 of the
Limitation Act before the appellate court merits consideration;
sufficient cause has been made out. The impugned judgment
returning a finding to the contrary is perverse.
7 The impugned judgment is accordingly set aside. The matter
is remanded back to the District & Sessions Judge. The parties are
directed to appear before the District & Sessions Judge, Tis
Hazari Court on 16.05.2011 at 10:00 AM who shall assign the case
to the concerned first appellate court who shall proceed to decide
the case on its merits.
8 Appeal is disposed of in the above terms. Substantial
question of law is answered in favour of the appellant.
INDERMEET KAUR, J.
MAY 06, 2011
a
