* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.1 of 2012 & C.M. No.289/2012
Decided on : 2nd April, 2013
MEHTAB SINGH ...... Appellant
Through: Mr. H.S. Dahiya, Advocate.
Versus
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Jaswinder Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal under Section 100 CPC against the
judgment and decree dated 28.8.2010 passed by the learned Additional
District Judge, (Central District 13), Tis Hazari Courts in R.C.A.
No.91/2009 titled Union of India & Ors. vs. Mehtab Singh by virtue of
which the judgment and decree dated 4.9.2009 passed by the learned
Senior Civil Judge cum Rent Controller, Central Delhi, was set aside and
the suit filed by the appellant/plaintiff was dismissed.
2. It may be pertinent here to mention that the appellant/plaintiff had
filed a suit for declaration praying therein for setting aside his order of
R.S.A. No.1/2012 Page 1 of 7 dismissal from service dated 21.7.2000 and the order of the appellate
authority confirming the dismissal passed on 9.3.2001.
3. The regular second appeal has been filed along with the application
(C.M. No.289/2012) seeking codonation of 366 days' delay in re-filing,
although, it has been averred in the application that the original filing of
the appeal was done within the period of limitation. In the application
seeking condonation of delay in re-filing it is alleged that the judgment
was passed on 28.8.2010 and the appeal was filed on 30.11.2010
challenging the judgment dated 28.8.2010. Since the objections were
raised to the appeal, it was collected from the Registry and re-filed on two
occasions on 7.12.2010 and 16.12.2010. It is further alleged that third
time also there were objections and accordingly, the appeal was collected
from the Registry on 22.12.2010, that is, one day before the winter
vacation. It is stated that the departmental proceedings which were
initiated against the appellant were in Hindi and their English translation
was to be filed and the file was not traceable in the lawyer's office. It is
stated that the counsel for the appellant applied for certified copy of the
entire file of appeal in the court of the learned Additional District Judge
R.S.A. No.1/2012 Page 2 of 7 on 25.3.2011 and the certified copy was made available on 30.3.2011. It
is further stated that inadvertently, the trial court record was not obtained
with the result whatever documents were available with the appellant,
were handed over to the counsel for the purpose of getting them
translated. In the meantime, the case file got tagged mistakenly with some
disposed of cases/files, and these files were shifted from old chamber at
Tis Hazari to the store at his residence. It is stated that the file was traced
only in the month of December, 2011 and this occasioned delay of 366
days' in re-filing the appeal.
4. In the delay application it has no where been said that the delay had
been occasioned on account of reasons beyond the control of the
appellant or for the reasons which constitute 'sufficient cause' for
condonation of delay. The application was supported by an affidavit of
the appellant as well as Mr. H.S. Dahiya, Advocate.
5. The respondent filed reply to the application and contested the stand
of the appellant. It was stated in the reply that the appellant had been
grossly negligent in pursuing the appeal. According to the admission
made by the appellant himself, the appeal was filed three times before the
R.S.A. No.1/2012 Page 3 of 7 courts rose for winter vacation and even on these three occasions, the
objections could not be removed. The appellant had admittedly collected
the copy of the appeal lying in objection on the last working date before
the winter vacation and chosen to remain silent till 25.3.2011 when
certified copy of the appellate court's record was applied. Even at that
stage, the record of the trial court was not applied for. It has also been
stated that it is a common knowledge that the entire record is not required
to be filed, what is required to be filed along with the second appeal, is
the documents on which the appellant is relying on. A prayer could have
been made by the appellant for requisition of the trial court record. It is
further stated that the explanation given by the appellant is neither bona
fide nor convincing which may constitute the sufficient cause.
Accordingly, it is prayed that the application for condonation of delay be
dismissed.
6. I have carefully considered the submissions and gone through the
record. There is no doubt about the fact that according to Rule 5 of
Chapter I Part A(a), Delhi High Court Rules, once an appeal is collected
from the filing counter and the objections raised by the Registry, the re-
R.S.A. No.1/2012 Page 4 of 7 filing has to be done within a period of seven days and this period cannot
exceed more than 30 days in all. The necessary rule in this regard reads
as under:-
"5. Amendment--The Deputy Registrar Assistant Registrar, Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the Court record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3 CPC.
(2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Assistant Registrar, in charge of the Filing Counter under sub-rule (1), it shall be registered and listed before the Court for its dismissal for non- prosecution.
(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Assistant Registrar in charge of the Filing Counter, under sub- rule (1) it shall be considered as fresh institution."
7. In the instant case, the appellant had admittedly filed the appeal
three times before finally collecting the appeal in objection on
22.12.2010. In these three filings, he was not able to remove all the
objections. Even after one day prior to the rising of the courts for winter
vacation, the appellant did not make any effort to obtain the record of the
R.S.A. No.1/2012 Page 5 of 7 trial court or the appellate court for almost three months as according to
the appellant himself, the certified copy was applied only on 25.3.2011
although the appeal was collected from the Registry in the month of
December, 2011. The appellant has not given any cogent explanation as
to why he remained silent for a period of three months after collecting the
paper book. Even from March, 2011 when the certified copy was
applied, till the month of December, 2011 when the appeal is stated to
have been traced, no explanation has been given as to what efforts were
made by the appellant. Therefore, this seems to be only a cooked up
story setup by the appellant for the purpose of covering up his negligence
in handling the matter and filing of the appeal. The bona fides of the
appellant are suspect.
8. No doubt, the Apex Court in number of judgments has construed
the word 'sufficient cause' liberally and pragmatically but nevertheless,
the concept of 'sufficient cause' has not been interpreted to stretch to
such an extent where undue premium is put to the gross negligent conduct
of the appellant in condoning the delay.
R.S.A. No.1/2012 Page 6 of 7
9. In the instant case, from the sequence of events narrated by the
appellant in the delay application, I am fully convinced that the appellant
had been most negligent in pursuing the appeal. I feel that he had
accepted the finding returned by the first appellate court setting aside the
order passed by the trial court by virtue of which the order of dismissal
was set aside by the trial court. It seems that it is only belatedly on the
advice of some counsel that he chose to file the present regular second
appeal and the counsel has very willingly furnished the affidavit in order
to lend some credence to the story having been setup by the appellant for
the purpose of condonation of delay. I am not convinced at all. The
delay which has occasioned in re-filing has to be treated as delay in
original filing as it is more than 30 days for which no 'sufficient cause'
has been shown by the appellant.
10. Accordingly, the application of the appellant is disallowed. Since
the application seeking condonation of delay is disallowed, the appeal
itself becomes time-barred and accordingly, the appeal is dismissed.
V.K. SHALI, J.
APRIL 02, 2013/'AA'
R.S.A. No.1/2012 Page 7 of 7
