Pradeep Chand Giri vs Harish Sethi
2012 Latest Caselaw 1194 Del

$~25

*	IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI



+ 		RSA 167/2009



%					Date of  Decision: 22.2.2012



PRADEEP CHAND GIRI  		                        ..... Appellant

				Through :	Mr. Arun Bhardwaj, Sr. Adv. with

Mr. A.K. Vali, Mr. Tuhin and

Mr. Hitesh Vali, Advs.



			versus



HARISH SETHI  				                       ..... Respondent

				Through :	Mr. Rajat Aneja, Adv.



CORAM:

HON'BLE MS. JUSTICE VEENA BIRBAL





VEENA BIRBAL, J. (Oral)

CM No.18838/2009 (for condonation of delay)

1. By way of Regular Second Appeal, appellant has challenged the judgment and decree of the First Appellate Court dated 30th October, 2006 passed by the learned ADJ, Delhi in Appeal no.26/2004. Along with the aforesaid appeal, an application under Sections 5 and 14 of the Limitation Act, 1963 (hereinafter referred to as 'the Act') is filed for condonation of delay in filing the second appeal.

2. It is stated in the application that there is a delay of 702 days in filing the second appeal. The reasons for delay allegedly are that earlier the appellant had assailed the impugned order dated 30th October, 2006 passed by the learned Addl. District Judge in appeal no.26/2004 by filing a petition under Article 227 of the Constitution of India i.e. C.M.(M) 261/2007. It is stated that the said petition was disposed of as not maintainable by this court vide order dated 8th December, 2009 on account of alternate remedy of filing second appeal being available to the appellant. It is stated that while disposing of the said petition, liberty was granted to the appellant to take appropriate remedy in accordance with law. It is stated that the learned Single Judge while giving liberty to the appellant also continued the operation of the ex parte interim order granted in favour of appellant for a further period of two weeks from 8.12.2009.

3. It is alleged that before filing the petition under Article 227 of the Constitution of India counsel for the appellant had made enquiries and was informed that there is no nomenclature whereby second appeal in respect of order allowing objections in execution can be filed, as such, under the bonafide belief, appellant had filed the said petition. It is stated that there is a lapse on the part of counsel and delay has occurred as appellant had been pursuing the said petition with due diligence, as such, the said time spent in the said proceedings be excluded in counting the period of limitation of filing the second appeal.

4. On the other hand, learned counsel for the respondent has contended that there is a delay of 1067 days in filing the appeal. It is contended that neither the name of the counsel is stated, who is alleged to have advised the appellant nor his affidavit has been filed as such appellant cannot be given the benefit of time spent in the wrong forum.

It may be noticed that there is a delay of 1067 days as is submitted by learned counsel for the respondent. Learned senior counsel for the appellant has fairly conceded that number of days have been wrongly counted and actually there is a delay of 1067 days.

5. CM(M) 261/2007 under Article 227 of the Constitution of India challenging the impugned order dated 30.10.2006 was filed on 21st February, 2007. The said petition was disposed of being not maintainable on 8th December, 2009. Thus time spent in pursuing the aforesaid remedy is 1014 days. While disposing of said petition, being not maintainable liberty was granted to the appellant to take appropriate remedy, if available, in accordance with law. The said order reads as under:-

  "On the last date i.e. 12th November, 2009 it was observed that this  petition under Article 227 of the Constitution of India directed against the order of the First Appellate Court, in appeal against the decision on the objections under Order 21 Rule 97 of the CPC in execution, is not maintainable  for the reason of such decision having the force of a decree and the petitioner,  if aggrieved by the decision of the First Appellate Court, having the remedy of  a regular second appeal available to him. The counsel for the petitioner had  sought time to consider. The counsel for the petitioner states that inquiry  from the Registry had been made before filing this petition and since it was  informed that no execution second appeal lies, this petition under Article 227  was preferred. The counsel for the respondent controverts and states that no  such inquiries were made and were not even necessary to be made, this being a  proposition of law. The counsel for the respondent further points out that he  had in his reply filed long back taken inter alia the same objection but, inspite of the same, the petitioner did not take any step for preferring the appropriate remedy.

   The counsel for the petitioner has today not shown anything to indicate that what was observed on 12th November, 2009 by this court is not correct. Thatbeing the position, ordinarily a petition under Article 227 would not lie whenthe alternative  statutory remedy of appeal is available. Reference in this regard may be made  to Punjab National Bank Vs O.C. Krishnan AIR 2001 SC 3208 and Ajay Bansal Vs  Anup Mehta AIR 2007 SC 909.

   The counsel for the petitioner seeks that the present petition be converted into a second appeal. However, that would not be appropriate as the  format of a second appeal is entirely different from that of a petition under  Article 227. The counsel for the petitioner then contends that he will have  difficulty in serving the respondent and that there is an interim order in his  favour in these proceedings and in the event of the petition being held to be  not maintainable, the respondent may deal with the property to the detriment of  the petitioner.

The said fear/apprehension of the petitioner can be allayed by providing  that in the event of a Regular Second Appeal being preferred by the petitioner  and notice thereof being issued, the same instead of being served on the  respondent be served on Mr Rajat Aneja, Advocate appearing for the respondent in  these proceedings. Mr Aneja has no objection to the same without prejudice to  his pleas as to limitation.

   As far as the apprehension regarding the interim order is concerned, the   ex parte interim order dated 21st February, 2007 in these proceedings is continued for a period of two weeks from today to enable the petitioner to apply  for similar order in appeal.

   The petition being otherwise not maintainable is disposed of with liberty to the petitioner to, in accordance with law take the appropriate remedy, if available. The trial court record be returned unless directed to be retained by an order in the appeal to be preferred by the petitioner."

6. It may be seen that the appellant has pursued the said petition from 21.2.2007 till 8th December, 2009 i.e. 1014 days has been spent there. The stand of the appellant is that due to advise by his earlier counsel the said petition was filed with the bonafide belief that same was the appropriate remedy. There is an affidavit of the appellant to substantiate his stand. Even if the affidavit of the earlier counsel is not there as is contended, there is no reason to disbelieve the affidavit of the appellant. The stand of the appellant is that he may not be allowed to suffer on account of lapse on the part of his earlier counsel.

7. Section 14 of the Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. On reading section 14 of the Act it is clear that the legislature has enacted the said section to exempt a certain period covered by a bonafide litigious activity. Reference in this regard is made to Consolidated Engineering Enterprises vs Principal Secretary, Irrigation Department and ors (2008) 7 SCC 169.

8. In the present case, due to bonafide mistake, appellant was pursing the remedy in a wrong forum. There is nothing on record to show that prior proceedings were not instituted in good faith. In the facts and circumstances of the case, appellant must get the benefit of time taken in pursuing the remedy by filing CM(M) 261/2007 in good faith. It may be mentioned that after the aforesaid petition was disposed of being not maintainable, liberty has also been granted to the appellant to take the appropriate remedy in accordance with law. Thereafter, time was taken in preparation/filing of second appeal and accordingly second appeal was filed.

9. In view of the above discussion, delay in filing the second appeal is condoned. Respondent is compensated with costs of Rs.7000/- to be paid within two weeks from today.

Application stands disposed of accordingly.

RSA No. 167/2009

Renotify on 25.04.2012.

VEENA BIRBAL, J

FEBRUARY 22, 2012

ssb