Delhi High Court

Sudhir Kumar Anand vs Dr. Vijay Kr. Anand & Others on 4 May, 2012

Author: Manmohan Singh

*          THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment decided on 04.05.2012

+           I.A. No.1536/2010 and I.A. No.1537/2010
            in CS(OS) No.814/1998

SUDHIR KUMAR ANAND                           .....Plaintiff
               Through: Mr Harish Malhotra, Sr. Adv. with
                        Mr Tanuj Khurana, Adv.


                          Versus

DR. VIJAY KR. ANAND & OTHERS                     ..... Defendants
                 Through: Mr H.S. Dhir, Adv. for D-1.
                          Mr Pradeep Dewan, Sr. Adv. with
                          Ms Anupam Dhingra and Mr Dev
                          Prasad, Advs. for D-6.
CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to dispose of two pending

applications, being I.A. No.1536/2010 under Order IX, Rule 9 CPC

alongwith I.A. No.1537/2010 under Section 5 of the Limitation Act, 1963

filed by the plaintiff.

2. The instant suit was filed by the plaintiff for declaration,

partition and possession against the defendants. The suit was dismissed

for non-prosecution on 15.05.2008.

3. It is submitted in the application that since the matter was

being settled between the parties, therefore, on 05.12.2007 some more

time was sought for compromise and the matter was renotified on

14.02.2008 for further proceedings. Later on, it was revealed from the

record that the matter was listed on 08.05.2008, but no one appeared on

behalf of the plaintiff and the same was adjourned to 15.05.2008. On

15.05.2008, again there was no appearance on behalf of the plaintiff and

the suit was dismissed for non-prosecution.

4. It is alleged by the plaintiff in the application that in the

second week of January, 2010, when the plaintiff's attorney visited the

office of the Senior Advocate and enquired about his case, then only it

was revealed that since the file had been taken by the representative of

the plaintiff (power of attorney holder), and as there had been no meeting

between the plaintiff and any of his counsels, it was presumed at the

office of the counsels for the plaintiff that the new counsel has been

engaged in the matter. However, the plaintiff's attorney informed the

counsel that the file had been lost by the employee of the plaintiff's

attorney.

5. On 16.01.2010, certified copies of the entire file were applied

and from that it came to the notice of the plaintiff that the suit has been

dismissed on 15.05.2008. Hence, the present applications have been

filed. It is stated in the application that the plaintiff acted bonafidely and

the matter was not attended unintentionally on 08.05.2008 and

15.05.2008. Thus, the present application for restoration of suit be

allowed as the plaintiff has been able to show sufficient cause for non-

appearance.

6. In I.A. No.1537/2010, filed under Section 5 of the Limitation

Act, 1963 for condonation of delay in filing of application for restoration

of the suit, it is stated that since, plaintiff is the resident of USA, he was

unable to visit India frequently and therefore, was not aware of the

dismissal of the suit uptil 22.01.2010 and it came to the knowledge of the

plaintiff, only when the certified copies of the entire file were taken. It

was submitted that the plaintiff has acted bonafidely and in good faith

and the delay of one year, seven months and 20 days in filing the

application for restoration of the suit be condoned.

7. Replies to the said applications were filed by the defendants

No.1 and 6. The prayers made in the applications have been strongly

opposed by the said defendants. In the reply, the defendant No.1 has

also given details of few facts, which according to them, are necessary in

order to decide the applications. According to them, it is just a futile

exercise to consider the applications filed by the plaintiff as the plaintiff

has already lost any interest in the matter. The present applications have

just been filed by the plaintiff in order to harass the defendants No.1 and

6 who are the subsequent purchasers of the suit property. As the plaintiff

has failed to show any valid "sufficient cause" for not making the

applications within the period of limitation, thus, both applications are

liable to be dismissed.

8. The facts mentioned in the reply are referred as under:

a) Plot No.S-473, Greater Kailash Part I, New Delhi, was purchased by Smt. Shakuntala Rani Anand on installments basis from DLF Housing and Construction Pvt. Ltd., New Delhi. The plot was measuring 208 sq. yds.

b) Mrs Anand and Mr Hans Raj Anand had come to Delhi from Canada to arrange/attend the marriage of Dr. Vijay Kumar Anand, which took place on 10.08.1982. The defendant No.2 had also come to attend the marriage of the defendant No.1.

c) After the marriage ceremony, Smt. Shakuntala Rani Anand with the consent of Mr Hans Raj Anand, executed a Will pertaining to Plot No.S-473, Greater Kailash Part I, New Delhi, on 27.09.1982 in favour of Dr. Vijay Kumar Anand. On 10.10.1982, both of them left New Delhi for Canada.

d) On 11.10.1982, they invited plaintiff, defendant No.2 and defendant No.3 when they disclosed about execution of the Will dated 27.09.1982 in favour of Dr. Vijay Kumar Anand. They told Mr Sudhir anand, Dr. Pravesh Kumar Anand and their daughter Ms. Kiran Rehan about the execution of Will dated 27.09.1982 in favour of Dr. Vijay Kumar pertaining to Plot No.S-473, Greater Kailash Part I, New Delhi.

e) On 03.04.1984, unfortunately Smt. Shakuntala Rani Anand passed away. After her death, on account of execution of Will dated 27.09.1982, Dr. Vijay Kumar Anand became the sole and exclusive owner of Plot No.S-473, Greater Kailash Part I, New Delhi. After the death of Smt. Shakuntala Rani Anand, Sh. Hans Raj Anand visited India in 1985, when he told about the execution of Will dated 27.09.1982 to Dr. Vijay Kumar Anand. Thereafter, Sh. Hans Raj Anand came to India in 1987 and in 1989. In the year 1989, he handed over the original Will pertaining to Plot No.S-473, Greater Kailash Part I, New Delhi, to Dr Vijay Kumar Anand.

f) That after the Will was handed over to Dr. Vijay Kumar Anand, he found the names of two attesting witnesses to

the said Will. He contacted them for getting the Will registered. The Will executed by Smt. Shakuntala Rani Anand was registered on 14.07.1992 by the Sub-Registrar, Kashmere Gate, Delhi.

g) Sh. Hans Raj Anand sent a letter dated 22.12.1994 to Dr. Vijay Kumar Anand.

h) That before any reply to the letter dated 22.12.1994 could be sent to Sh. Hans Raj Anand by Dr. Vijay Kumar Anand, he died on 15.01.1995 in Canada. Sh. Hans Raj Anand did not leave any Will pertaining to Plot No.S-473, Greater Kailash Part I, New Delhi, inasmuch as he himself was a party along with his wife to the execution of the Will dated 27.09.1982 in favour of Dr. Vijay Kumar Anand and the same was handed over by him to Dr. Vijay Kumar Anand, which was registered on 14.07.1992. The defendant No.2 took advantage of death of Sh. Hans Raj Anand, as he was alone in Canada at the time of his death, and he prepared a false, fabricated and forged Will in his favour, which has not seen the light of the day.

9. The defendant No.6 has stated in the reply that the plaintiff

has filed the restoration application on the ground that on one hand

plaintiff's advocate presumed that plaintiff had engaged another counsel

and on the other hand, the plaintiff presumed that his counsel would be

attending the proceedings. However, neither plaintiff had withdrawn the

vakalatnama nor any application seeking leave for determination of

vakalatnama was filed by anyone. As far as missing of the file is

concerned, the said excuse was an afterthought. Thus, the application for

restoration is barred by time. The explanation given in the application is

baseless. There is no explanation given by the plaintiff about the non-

appearance before Court on 08.05.2008 and 15.05.2008 and from the

conduct of the plaintiff, it appears that plaintiff was not interested in

pursuing the matter. It has also not been disclosed validly, as to how the

plaintiff learnt about the dismissal of the suit. The defendant No.6 has

also denied the explanation given by the plaintiff about obtaining certified

copies of the file. It is further the contention of defendant No.6 that the

application has been filed after about one year and nine months in order

to harass and extort money from the defendant No.6 who is the intending

purchaser of property in question for valuable consideration.

10. The learned counsel for the defendant No.6 relied upon the

following judgments:

i. Jasbir Sobti & Ors. v. Surender Singh; 152 (2008) DLT 258 (DB).

ii. Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and Another; 2010 (2) SCALE 645.

iii. Ramlal and others v. Rewa Coalfields Ltd.; AIR 1962 SC 361.

11. Delay is one of the facet which controls the exercise of

judicial discretion vested in the Court under the provision of Section 5 of

Limitation Act, 1963. The words "sufficient cause" for not making the

application within the period of limitation, no doubt, is to be applied in a

reasonable manner but, depending upon the facts and circumstances of

each case. Party has to give satisfactory explanation. Unless sufficient

cause is explained for condonation of delay, prayer may not be granted.

In addition to this, the Court must also take into account the conduct of

the party and its bonafide. The Court has to see whether substantial

justice would be done by condoning the delay. It cannot be overlooked

that on expiry of the period of limitation prescribed for seeking legal

remedy, rights accrue in favour of other side.

12. In the present case, it is not denied that the defendant No.6

has purchased the property. In case the request of condonation of delay

is taken lightly, then the rights of defendant No.6 are to be affected.

13. In the similar situation, the Supreme Court in the case of

Balwant Singh v. Jagdish Singh & Ors.; V (2010) SLT 790, it was held

as under:

13. ........We may state that even if the term sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as

a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR1962 SC 361] this Court took the view:

"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is

shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."

14. No doubt, the plaintiff in his suit is mainly relying upon the

probate petition No.21/1997 filed with respect to the alleged Will dated

20.10.1993 allegedly executed by Sh. Hans Raj Anand pertaining to the

suit property, the same was challenged by the defendant No.1 on the

ground that it is a false, fabricated and forged document prepared by the

defendant No.2. The plaintiff's probate case No.21/1997 was dismissed

for non-prosecution vide order dated 02.03.2006. However, no steps

were taken by the plaintiff against the dismissal of the said probate case.

When this suit came up before this Court on 14.02.2008, Ms Namita

Chaudhary, Advocate, made the following statement:

"Learned counsel for the plaintiff submitted that with the dismissal of a Probate application moved by the plaintiff, this suit is not maintainable as one of the reliefs spelt out in para 18 of the plaint pertains to the contents of the Will of the properties dealt with there."

15. On the basis of the statement made by Advocate before Court

on 14.02.2008 about the dismissal of the probate case No.21/1997 in the

year 2006 and no steps being taken for restoration, it appears that the

plaintiff had lost his interest in the matter after making the said statement

before Court and the suit was dismissed.

16. The plaintiff filed the present suit for declaration, partition and

possession against the defendants. The plaintiff, prior to this suit, had

filed a probate case bearing No.21/1997 which was based upon alleged

Will dated 20.10.1993 allegedly executed by Sh. Hans Raj Anand. The

reliance of the entire suit is on the said Will as well as the outcome of the

probate case No.21/1997. The probate case was dismissed for non-

prosecution vide order dated 02.03.2006. It is stated by the defendants