Delhi High Court
Bhagwan Singh vs Modern School And Anr on 13 December, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 992/2012
Date of Decision: 13th December, 2012
BHAGWAN SINGH ..... Petitioner
Through: Mr.Kunwar C.M.Khan,
Advocate with Ms. Sandhya
Singh, Advocate.
versus
MODERN SCHOOL AND ANR ..... Respondents
Through: Ms.Raani Birbal, Advocate with
Mr.Rohit, Advocate.
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 27.07.2012 of learned Addl. District Judge,
Wakf Tribunal, New Delhi, whereby the application filed by the
respondents seeking condonation of delay of two years in filing the
appeal, was allowed against cost of Rs.5000/-.
2. The respondents herein had filed an appeal against the judgment
and decree of the Civil Judge dated 21.07.2007. There being delay of
over two years in filing the appeal before the learned ADJ, an
application was also filed for condonation of delay, which was allowed
by the learned ADJ vide impugned order. The same is under challenge
in the instant petition.
3. The grounds on which the condonation of delay in filing the
appeal was sought were that due to the retirement of the administrative
staff of the respondents, the progress of the case could not be known,
and further that their counsel Sh. Rajnish Vats failed to appear before
the court, and also did not inform the respondents. It was averred that
they came to know about the passing of the impugned judgment and
decree only from NDMC, and thus, it was because of these reasons that
the filing of appeal got delayed.
4. The learned ADJ condoned the delay, opining the reasons given
as amounting to sufficient cause, warranting condonation of delay. It
was also noted that the respondents had made a complaint against their
counsel to the Bar Council, and thus, the delay was not actuated due to
any mala fide or lack of good faith or diligence.
5. The impugned order is assailed mainly on the ground that the
administrative staff of the respondents had retired prior to the filing of
the suit, and that it is wrong to allege that a complaint was filed against
their counsel before the Bar Council.
6. Before adverting to the submissions of the learned counsel for
the petitioner, I may reiterate that power of this court under Article 227
of the Constitution is limited, being supervisory in nature and not like
an appellate court. It is settled proposition of law that if the discretion
exercised by the courts below is not arbitrary, capricious or perverse
and the findings are not contrary to the material available on record,
this court will refrain from interfering with the same.
7. It is the settled law that while considering an application for
condonation of delay each and every days delay has to be explained
but this explanation has to be considered in a pragmatic manner and
with a liberal approach. The judgment of the Hon'ble Supreme Court
of IOndia in Collector Land Acquisition, Anantnag & Anr. vs. Mst
Katiji & Ors AIR 1987 SC 1353 has held as under:-
"3. The legislature has conferred the power to condone delay
by enacting Section 51 of the Indian Limitation Act of 1963 in
order to enable the Courts to do substantial justice to parties
by disposing of matters on „merits‟. The expression "sufficient
cause" employed by the legislature is adequately elastic to
enable the courts to apply the law in a meaningful manner
which sub-serves the ends of justice-- that being the life
purpose for the existence of the institution of Courts. It is
common knowledge that this Court has been making a
justifiably liberal approach in matters instituted in this Court.
But the message does not appear to have percolated down to
all the other Courts in the hierarchy. And such a liberal
approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice
being defeated. As again this when delay is condoned the
highest that can happen is that a cause would be decided on
merits after hearing the parties.
3. "Every day‟s delay must be explained" does not mean that a
pedantic approach should made. Why not every hour‟s delay,
every second‟s delay? The doctrine must be applied in a
rational common sense pragmatic manner.
4. When substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves
to be prerferred for the other side cannot claim to have vested
right in injustice being done because of a non-deliberate
delay.
5. There is no presumption that delay is occasioned deliberately,
or on account of culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by resorting to delay.
In fact he runs a serious risk.
6. It must be grasped that judiciary is respect not on account of
its power to legalize injustice on technical grounds but
because it is capable of removing injustice and is expected to
do so."
8. No doubt, there has been a considerable delay in filing the
appeal, but it was the respondent/s, who had suffered because of delay
and not the petitioner. It thus could not be said that the respondents
would have gained anything in delaying to file the appeal. It is
recognized proposition that the delay in pursuing a remedy by a litigant
on account of negligence or misleading by his counsel, can be
condoned, if there was no mala fide or dishonesty on the part of the
party. Since the learned ADJ has recorded from the record that a
complaint was filed by the respondents of the counsel to the Bar
Council, and were pursuing the same, I do not see any reason to
interfere with that observation, and do not see any infirmity or
perversity in the discretion exercised by the learned ADJ in condoning
the delay with cost. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J
DECEMBER 13, 2012/akb
