Shiv Hari Gaur & Anr. vs Sumitra Devi
2012 Latest Caselaw 7118 Del

*         THE HIGH COURT OF DELHI AT NEW DELHI

+                        CM (M) 1239/2012

                                        Date of Decision: 12.12.2012


SHIV HARI GAUR & ANR.                             ...... Petitioner

                         Through:    Mr. R.K.Shukla, Advocate.

                               Versus

SUMITRA DEVI                                    ...... Respondent

                         Through:    Nemo.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution seeks assailing the order dated 12.09.2012 of Sr. Civil Judge (SCJ), whereby the application filed by the petitioners (respondents in appeal) under Section 151 CPC for dismissal of the appeal filed before him, was dismissed.

2. The respondent being aggrieved of the judgment and decree dated 26.03.2011 of Civil Judge, preferred an appeal before the ADJ, who vide order dated 11.1.2012, returned the appeal for filing in the court of competent jurisdiction. The appeal was returned on 23.1.2012

and that is how, it was filed on 24.1.2012 before the court of SCJ at Dwarka.

3. The petitioners filed an application under Section 151 CPC seeking dismissal of the appeal on the ground of barred by limitation, alleging that as per Article 116(b) of the Limitation Act, 1963, the prescribed period for filing the first appeal was 30 days from the date of judgment and decree under appeal. The application was dismissed by the SCJ vide the impugned order, which is under challenge in the instant petition.

4. I have heard learned counsel for the petitioners and perused the record. It is submitted by the learned counsel that the appeal was barred by limitation and that the learned SCJ erred in condoning the delay even without their being any application for condonation of delay. Similar submissions were made by the learned counsel for the petitioners before the SCJ, who observed and rightly so, that the appeal was returned on 23.1.2012 by the learned ADJ and has been filed in his court on the very next date i.e. 24.1.2012. He also observed, and rightly so, that there is nothing on record to show that the act of the respondent in pursuing the appeal before the court of ADJ was dishonest or lacked good faith, and the same being due to the bona fide mistake, and there being also no mala fide, the period of delay in pursuing the appeal before the ADJ was liable to be condoned.

5. It is undisputed proposition of law contained as in Section 14 of the Limitation Act, and as expanded by the judicial pronouncements liberally that any period, during which the suit/proceedings were kept pending in the court, which did not have the jurisdiction, is to be excluded. Of course, this was with a caveat that the said suit or proceedings were being pursued in good faith in the said court, and there was nothing on record to demonstrate that the plaintiff had acted dishonestly and with lack of good faith. In the instant case, the filing of the appeal in the court of ADJ cannot be said to be due to any dishonest and mala fide intention. The orders passed by the Civil Judge are ordinarily taken to be appealable before the court of Addl. District Judge, unless the valuation of the appeal for the purpose of court fee and jurisdiction was less than Rs. 500/-. In the instant case, the valuation of the appeal for the purpose of court fee and jurisdiction being less than Rs. 500/-, the appeal would lie before the SCJ and not before the ADJ. That is where the mistake came to be committed, and which cannot be said to be for any ulterior motive. I do not see any infirmity or illegality in the impugned order. The petition merits dismissal and stands dismissed in limine.

M.L. MEHTA, J.

DECEMBER 12, 2012 akb