The Principal Chief Conservator ... vs Rail India Technical And Economic ...
2012 Latest Caselaw 2516 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.325-26/2006

%                                                        18th April, 2012

         THE PRINCIPAL CHIEF CONSERVATOR
         OF FORESTS & ANR.                        ..... Appellants
                       Through: Mr. Trideep Pais with
                                Mr. Ashutosh Sitaraman, Advs.

                      versus

         RAIL INDIA TECHNICAL AND ECONOMIC
         SERVICES LTD. (RITES)                    ..... Respondent

Through: Mr. J.C.Seth with Mr. M.K.Pathak, Advs.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?                      Yes.

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed under

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

judgment of the Trial Court dated 12.12.2005 rejecting the application filed on

behalf of the appellants/defendants for condonation of delay in filing

appearance under Order 37 CPC.

2. The dispute in the present case is between two arms of the

Government. The respondent/plaintiff is a Central Government Public Sector

Undertaking (CPSU) and the appellants/defendants are the State of Karnataka.

The respondent/plaintiff filed the subject suit for recovery of Rs.18,29,124/-

on the ground that it carried out survey and demarcation of the boundary of

forest in the State of Karnataka for which an invoice was raised, which was

not paid and therefore the subject suit under Order 37 was filed.

3. The appellants/defendants were served in the suit on 8.8.2005. As

per Order 37 CPC, the appearance ought to have been filed within 10 days, i.e.

by 18.8.2005. The appellants/defendant, however, appeared in the Trial Court

on 10.9.2005 and filed a memo of appearance through their Advocate. The

appellants/defendants also filed photocopy of the application seeking

condonation of delay in filing the appearance. Trial Court adjourned the case

on 10.9.2005 to 11.11.2005 and on which date the actual application for

condonation of delay in filing the appearance was filed.

4. It has been held by the Supreme Court in the case of

N.Balakrishnan vs. M.Krishnamurthy, AIR 1998 SC 3222 that once there is

delay, obviously there is some amount of negligence. The Supreme Court has

said that unless the negligence is total want of action or gross negligence,

delay must be condoned because there is no interest of a person to file the

proceedings with any delay.

5. In the present case, the appellants/defendants were served on

8.8.2005. Though the original summons have not been filed on record, a

photocopy has been filed which shows receipt of the summons on 8.8.2005.

The appellants/defendants are the State Government, and not a private party

and therefore I would like to believe the fact that the appellants/defendants

were served on 8.8.2005. As per Order 37(3)(1), appearance ought to have

been filed by 18.8.2005 but appearance has been filed on 10.9.2005, i.e. with a

delay of 22 days. A similar issue came for consideration of this Court in the

case reported as M/s. NEPA Ltd. vs. M/s Media Asia Pvt. Ltd., AIR 2002

Delhi 128. In the case of M/s. NEPA Ltd.(supra), after considering two

earlier judgments of this Court, it has been held that hyper technical view for

filing appearance under Order 37 must not be taken and filing of a

Vakalatnama can also be treated as filing of appearance in terms of Sub-rules

(1) & (3) of Order 37 Rule 3 CPC. There is no specific format of filing an

appearance under Order 37(3)(1). In the present case, Trial Court record

shows that there is, in fact, a proper memo of appearance filed on behalf of the

appellants/defendants through their Advocate on 10.9.2005. Therefore, there

is a delay of 22 days in filing of appearance in a suit filed under Order 37

CPC. In my opinion, the delay of 22 days and, considering that the

appellants/defendants are a State Government, and the fact that it was not

situated in Delhi, i.e. it was situated in Karnataka and some amount of delay

has taken place, delay is not such so as to be called callous negligence or total

inaction/want of action so that the delay should not be condoned. I do not find

that the Trial Court is justified in alleging malafides or bad motive to the

appellants/defendants inasmuch as appearance indeed has been filed on

10.9.2005 on behalf of the appellants/defendants and therefore at best there

would be a delay of 22 days in filing of the appearance.

6. The appellants/defendants had deposited the decretal amount in

this Court and which was withdrawn by the respondent subject to furnishing

of bank guarantee.

7. Accordingly, while allowing the appeal and setting aside the

impugned judgment and condoning the delay in filing appearance of 22 days, I

consider it fit, in the interest of justice, that the respondent can retain the

amount received by it pursuant to the orders of the Court, however, the

respondent will continue to renew the bank guarantee till the disposal of the

application which will be filed by the appellants/defendants for leave to

defend or if so required will abide by the disposal of the suit if leave to defend

is granted subject to terms of deposit.

8. In view of the above, the appeal is accepted. Impugned judgment

is set aside and the delay in filing of appearance on behalf of the

appellants/defendants stands condoned.

                                              VALMIKI J. MEHTA, J
APRIL     18, 2012
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