Anant Prakash Bhan & Anr vs M/S Banaras House Ltd & Anr
2012 Latest Caselaw 6901 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                           Date of Decision: 03.12.2012

+      RSA 152/2009


ANANT PRAKASH BHAN & ANR                    ..... Appellants
                Through : Appellant no. 1 in person


                    versus


M/S BANARAS HOUSE LTD & ANR                                ..... Respondents
                 Through : None


CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. By way of this Regular Second Appeal under Section 100 of CPC, the appellant has challenged the order of the first appellate court passed by the learned ADJ, Delhi whereby the appeal has been dismissed on the ground of limitation.

2. The facts leading to the filing of the present appeal are as under:-

The appellants herein i.e. plaintiffs before the learned Civil Judge, Delhi had filed a suit praying for mandatory injunction stating therein that they were the employees of respondent no. 1. They were earlier appointed as Assistants. Thereafter, they were promoted and were

working as Senior Executives and were drawing monthly salary of `9,383/- and `9,127/- respectively. They had alleged that on 15.04.2001, they were compelled to take retirement from service. It was alleged that the same was under threat and undue influence. They have further alleged that respondents had entered into an agreement with the workers' union on 20.03.1986 and then on 04.03.1992 which provided pension to the employees of defendant no. 1 on attaining the age of retirement or if the employees take voluntary retirement scheme. They had alleged that after their retirement, they had not been given pension despite demand letters sent to them. Accordingly, they were compelled to file the aforesaid suit.

3. The stand of the respondent was that the suit was time barred and it was alleged that the suit filed by them was for recovery of money and they had intentionally filed it in the form of injunction to avoid the payment of court fee. On merits, it was contended that the appellants had resigned from the service of their own and there was no force or undue influence as was alleged and that they had also settled their accounts.

4. Thereafter, issues were framed and the learned Civil Judge, Delhi dismissed the suit holding that there was no cause of action in favour of the appellants and had dismissed the suit.

5. Aggrieved with the same, the appeal was filed before the learned Addl. District Judge. The said appeal had not been heard on merits. Learned ADJ had dismissed the same on the ground that there was delay

of 4 days in filing the appeal and accordingly dismissed the same vide impugned order dated 19.05.2009 on the ground of limitation.

6. The question for consideration is whether the appellate court was justified in not condoning the delay of 4 days in filing the appeal beyond the period of limitation.

7. Perusal of record shows that along with the appeal before the learned Addl. District Judge, an application under Section 5 of Limitation Act was filed wherein the delay has been explained. It was stated that appellant no. 1 had fallen sick and was confined to bed for about 15 days in the month of February, 2008 i.e. from 20.02.2008 to 05.03.2008 and the appellant no. 2 also approached the appellant no. 1 at his residence to take his file but the file was not traceable as the appellant no. 1 was confined to bed. It was further stated that there was a delay of 2 days. However, while going through the file, the learned ADJ found that there was a delay of 4 days in filing the appeal and accordingly did not condone the delay and dismissed the application and the appeal was also dismissed as the same was time barred. Perusal of material on record shows that as per averments made in the application, the appellant no. 1 remained on bed for about 13 days. The ld. Addl. District Judge has noted in the impugned order that the appeal was filed on 11.03.2008 whereas the filing stamp on the appeal on record shows that it was filed on 10.03.2008. The appeal came up for hearing before concerned Ld. ADJ on 11.03.2008. Learned ADJ has wrongly recorded that it was filed on 11.03.2008. There was delay of three days and not four days as is

noted by the Ld. Addl. District Judge. The delay has been properly explained. Further, the medical reasons have been given in explaining the delay. On merits, the appellants are claiming their right of pension as per alleged settlement. A valuable right has been lost to the appellant to be heard on the merits of the controversy. Considering the facts and circumstances of the case, the impugned order is set aside. There is nothing on record to show that the delay was intentional or was deliberate. I, therefore, condone the delay. Accordingly, the impugned order is set aside and the delay in filing the appeal is condoned.

8. The appeal stands allowed. The matter is remanded back to the learned District and Sessions Judge who will assign the case to the concerned appellate court to decide it on merits. There is no order as to costs.

The parties are directed to appear before the learned District and Sessions Judge on 17.12.2012 at 10.30 a.m.

VEENA BIRBAL, J DECEMBER 3, 2012 kks