Balwant Singh vs Uoi & Anr.
2013 Latest Caselaw 1760 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI
%
                                                     Date of Decision: 18.04.2013
+      RFA 715/2003
       BALWANT SINGH                                    ..... Appellant
                              Through:   Mr. Anand Yadav, Adv.

                     versus
       UOI & ANR.                                     ..... Respondent
                              Through:   Ms. Lekha, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (ORAL) CM 16730/2011 (for condonation of delay of 2660 days in filing CM 16729/2011 for restoration)

This is an application for condonation of delay in filing CM No.16729/2011, seeking restoration of this appeal which was dismissed in default and for non- prosecution on 29.4.2004. There is delay of as much as 2660 days (7 years and 105 days). The following are the reasons given in the application, for condonation of this abnormal delay of more than 7 years:

"2. That the appellant could not file the application for restoration of his aforementioned appeal in time due to the lack of knowledge and intimation of the dismissal order dated 29.4.2004.

3. That the appellant came to know the above mentioned facts of dismissal of its aforementioned appeal when his regular appeal filed by him for some other Khasra Nos. of the same village was come up for regular hearing before the Hon‟ble

Court of Ms. Hima Kohli in the month of July-August, 2011 as stated in the accompanying application under Order 9 Rule 9 read with Section 151 CPC."

2. When this application was taken up for hearing on 22.9.2011, the learned counsel for the appellant/ applicant stated that ever since the year 2004, till the date of filing of the present application for restoration, the appellant has been unaware of the status of the present case, as he had been advised by his previous counsel that he would get an intimation as to when the matter would be listed for hearing in the „regular list‟ and since no such intimation was received by the appellant, he assumed that the appeal remaining pending for hearing. Thereupon, the appellant was directed to file affidavit giving details of his educational qualifications and the profession pursued by him. He was also directed to explain as to whether he had withdrawn the amount awarded under the impugned judgment dated 15.01.2003 passed by the Reference Court and, if so, the date on which the said amount was withdrawn by him. He was also directed to intimate as to who was the counsel who was originally conducting the case.

3. In compliance of the aforesaid order, the appellant filed affidavit wherein he has stated as under:

"2. That the deponent is qualified upto inter J.B.T. I.G.D. (Intermediate grade Drawing Examination).

3. That after completion of an education, deponent joined Delhi Govt. School as Drawing Teacher and retired from the job in the month of January, 1996.

4. That the present counsel Mr. B.D. Sharma was the student of deponent due to which deponent appointed him counsel for the aforesaid case and who contested the aforesaid case in lower Court as well as before this Hon‟ble Court.

5. That the deponent has no personal grievance against the said counsel Mr. B.D. Sharma as he is like a son of deponent and deponent has still full faith upon him.

6. That the deponent withdrew his first installment of compensation amount for the subject land of the appeal on 21.12.1989 when an order was passed by LAC and further withdrew second installment on 9.12.2004 when an order was passed by Ld. ADJ, Delhi and third installment was of the interest accrued upon the aforesaid deposited amount of compensation which was withdrawn on 3.6.2011."

4. In Balwant Singh v. Jagdish Singh (2010) 8 SCC 685, Supreme Court, inter alia, held as under:-

"The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. (sic a lis). 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."

In Maniben Devraj Shah vs. Municipal Corporation of Brihan, [(2012 5 SCC 157], considering the expression „sufficient cause‟ used in Section 5 of Limitation Act in the context of Municipal Corporation of Brihan, Mumbai, Supreme Court, inter alia, observed as under:-

"24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

In Office of the Chief Post Master General & Ors. v. Living Media India Limited and Anr. [2012(2) SCALE 782], after reviewing its earlier decisions on the subject, inter alia, held as under:-

"12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way

of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably

failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

5. It is true that the decision in Maniben Devraj Shah (supra) and Office of the Chief Post Master General & Ors.(Supra) were rendered in the context of State and its instrumentalities, the rigor of the law of limitation would apply with greater force in case of an individual, who is expected to remain vigilant in pursuing his legal remedies, he being the sole master of his personal affairs. The only reason given in the application is that the counsel who was representing the appellant had informed him that he would get advance notice whenever his matter was listed for hearing in the "regular board". However, no affidavit of the counsel has been filed by the appellant in support of this claim. The Rules of this Court do not provide for such a notice to be given and the litigant is required to appear either personally or through counsel as and when an admitted appeal comes up for hearing. Admittedly, no action has been taken by the appellant against the counsel who according to him had given such information to him. In absence of an affidavit from the counsel, I cannot accept this otherwise untenable plea. In the absence of any such practice to this effect, no counsel is likely to give such an information to the client.

6. The appellant is not an illiterate person, he being a retired school teacher and, therefore, it was expected of him to remain in regular touch with his counsel and keep trace of the appeal filed by him. The appeal was admitted on September 15, 2003 in the presence of Mr. B.D. Sharma, counsel for the appellant and it came to be dismissed in default and for non-prosecution on 29.4.2004. The time lag between the admission and dismissal of the appeal was not so substantial that the counsel would not be able to keep trace of the case. Moreover, it is highly unlikely

that a well educated person will not bother to ascertain the fate of his case, either through counsel by approaching him in this regard or in person, by visiting the website of the Court where the status of all cases as well as the orders passed in them are available, or by inspecting the case file.

A perusal of the record would show that a copy of the order dated 29.4.2004 dismissing the appeal in default and for non-prosecution was forwarded to the learned District Judge along with the lower Court record. It has come in the affidavit of the appellant that the second installment of the compensation was withdrawn by him on 9.12.2004 i.e. more than 7 months after his appeal was dismissed in default and for non-prosecution. The copy of the order to the learned District Judge, Delhi was forwarded on 26.7.2004 i.e. more than four months before the second installment of compensation was withdrawn by the appellant. It would, therefore, be difficult to accept that even at the time of withdrawal of the second installment of compensation, the appellant did not become aware of dismissal of his appeal on 29.4.2004.

7. The learned counsel for the appellant has relied upon the decision of the Supreme Court in Saraswati Devi (D) By LR vs. Delhi Devt. Authority & Ors. [2013(135) DRJ 6 (SC)]. In that case, the Supreme Court referred to an order passed by the Division Bench of this Court condoning the delay of about 760 days in filing the LPA against the decision of a learned Single Judge. A perusal of the observations made by the Division Bench of this Court, as extracted in the decision of the Supreme Court, would show that the appellant before the Division Bench had submitted that his absence was neither wilful nor due to negligence to duty but due to the time-consuming and unavoidable administrative procedure which had to be gone through in the case where the litigant is the government and the decision has to be taken collectively. The view taken by the Division Bench of this Court

would not apply to the case before me for a number of reasons. Firstly, the delay in this case is for more than 7 years whereas the delay in the case before the Division Bench was about two years only. Secondly, the appellant before the Division Bench was DDA, where decision to file an appeal is to be taken after the matter has been examined by various levels, which is a time-consuming process. In fact, considering the decision of the Supreme Court in the case of Office of the Chief Post Master General & Ors.(Supra), even the State and its agencies cannot claim any preferential treatment in the matter of condonation of delay and are required to give plausible explanation while seeking condonation of delay in approaching the Court for redressal of their grievances.

8. For the reasons stated hereinabove, I find no merit in the application and the same is hereby dismissed.

CM 16729/2011 for restoration)

In view of the dismissal of application for condonation of delay, this application is liable to be dismissed as barred by limitation.

The application is accordingly dismissed.

V.K. JAIN, J

APRIL 18, 2013/rd