Delhi High Court
New Okhla Industrial Development ... vs Km Paramjit & Anr on 1 November, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.11.2011
+ CM(M) 1278/2011
NEW OKHLA INDUSTRIAL
DEVELOPMENT AUTHORITY ..... Petitioner
Through: Mr. H.L. Raina, Advocate.
versus
KM PARAMJIT & ANR ..... Respondents
Through: Mr. I.V. Raghav and Mr. S.B.
Raghav, Advocates for R-1.
+ CM(M) 1279/2011
NEW OKHLA INDUSTRIAL
DEVELOPMENT AUTHORITY ..... Petitioner
Through: Mr. H.L. Raina, Advocate.
versus
VINOD KUMAR MITTAL & ANR ..... Respondents
Through: Mr. I.V. Raghav and Mr. S.B.
Raghav, Advocates for R-1.
+ CM(M) 1280/2011
NEW OKHLA INDUSTRIAL
DEVELOPMENT AUTHORITY ..... Petitioner
Through: Mr. H.L. Raina, Advocate.
versus
RAJESHWAR PRASAD & ANR ..... Respondents
Through: Mr. I.V. Raghav and Mr. S.B.
Raghav, Advocates for R-1.
CM(M) Nos.1278-81/2011 Page 1 of 5
+ CM(M) 1281/2011
NEW OKHLA INDUSTRIAL
DEVELOPMENT AUTHORITY ..... Petitioner
Through: Mr. H.L. Raina, Advocate.
versus
NEW ASHOK NAGAR BLOCK E & ED
DEV ASSOCIATION & ORS ..... Respondents
Through: Mr. Robin George , Mr. Satish
Kumar Bhatia and Mr. Hukum
Singh, Advocates for R-1, 3, 4,
6 to 15, 19 & 20.
Mr. I.V. Raghav and Mr. S.B.
Raghav, Advocates for R-16,
17, 18 & 21.
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
11.03.2011 vide which the application filed by the appellant under
Section 5 of the Limitation Act seeking condonation of delay of 78
days in filing the appeal had been dismissed.
2. Record shows that a suit for permanent injunction and
declaration had been filed by the plaintiff against the two
defendants; the prayer in the suit was that the defendants i.e the
New Okhla Industrial Development Authority as also the DDA be
restrained from abolishing the suit property and interfering in the
peaceful possession of the property. On the pleadings of the
parties issues were framed as the main bone of contention was as
to whether the property falls in Noida or in Delhi. The Trial Court
vide judgment dated 01.05.2010 had decreed the suit in favour of
the plaintiff holding that the suit property falls within Illaqa
Shahdara, Delhi. Appeal against the aforenoted judgment was
filed by the petitioner i.e. the New Okhla Industrial Development
Authority after a delay of 78 days. In the application under Section
5 of the Limitation Act the delay has been explained in para Nos. 2
and 3.
3. It is not in dispute and as it is borne out from the record
that the certified copy of the judgment and decree dated
01.05.2010 had been applied for on 07.05.2010 which was
obtained on 17.05.2010; appeal was to be filed till 17.06.2010; it
was filed belatedly for the reason that the earlier counsel who was
dealing with the matter had been changed; new counsel had
requested the earlier counsel for handing over the complete case
file which was given to the new counsel only on 26.06.2010; the
inspection report dated 07.01.2005 was found missing which was
to be obtained before the appeal could be filed; certified copy of
these papers were made available only on 28.07.2010; this was
the explanation furnished by the petitioner for the delay in filing
the appeal.
4. The words 'sufficient cause' as appearing in Section 5 of the
Limitation Act have to be construed liberally so as to advance
substantial justice to the parties; a litigant should not be shut out
at the threshold and be deprived of the opportunity to be heard on
merits; delay may be condoned provided that the applicant is able
to furnish a sufficiently justifiable explanation for his delay. No
hard and fast rule can be laid down. Each case has to be decided
on its factual matrix. Unless there is lack of bona fides or a total
inaction or negligence on the part of the litigant, the protection of
Section 5 should not be deprived to a party; mistake of a counsel
may also amount to a sufficient cause for condonation of delay; it
is always a question of fact.
5. In the instant case, keeping in view the explanation
furnished by the learned counsel for the petitioner in the
application which was duly supported by the affidavit of the
Tehsildar of the petitioner who had stated that this application
had been drafted on the basis of the relevant record, the
justification furnished by the petitioner for not filing the appeal
within time has been explained. The petitioner should not be
declined a hearing on merits for the fault which at best is
attributable to his counsel. The impugned order is accordingly set
aside. Delay in filing the appeal is condoned.
This order is passed subject to payment of Rs. 5,000/- as
costs. The parties to appear before the First Appellate Court on
15.11.2011 and the Trial Court shall proceed to dispose of the
appeal on its merits.
INDERMEET KAUR, J
NOVEMBER 01, 2011
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