Mohd. Abdul Akramuddin vs Kanti Devi (Deceased) & Ors.
2013 Latest Caselaw 5916 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: December 20, 2013

+                    CM(M) 1215/2013 & C.M. No.17789/2013

      MOHD. ABDUL AKRAMUDDIN                  ..... Petitioner
                   Through Mr.Nageshwar Pandey, Adv. with
                           Mr.A.K.Sinha, Adv.

                          versus

      KANTI DEVI (DECEASED) & ORS                            ..... Respondents
                    Through  None

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India read with Section 151 of CPC, the petitioner has assailed order dated 7th September, 2013 passed by the learned Addl. District Judge whereby his application for condonation of delay of more than one year was dismissed. In the main appeal the petitioner challenged the judgment and decree dated 30th July, 2011passed by the learned Civil Judge against the petitioner .

2. The brief facts are that on 25th November, 2002 the petitioner along with his five brothers purchased the suit property bearing No. D-61, New Seelampur, Delhi admeasuring 45 sq. yards from Kusum Sharma, wife of respondent No.6 through registered General Power of Attorney, Agreement to Sale, Receipts etc.

3. Kusum Sharma, wife of respondent No.6 handed over the vacant possession of the suit property to the petitioner and his brothers after

execution of relevant documents. The petitioner took possession of the suit property, at that time consisted of 1 room and later, divided the said rooms to 2 rooms by a wall in between and further, constructed 2 rooms on the first floor.

4. On 20th August, 2004 the respondent No. 1 to 5 filed a civil suit for declaration, possession and permanent injunction against respondent No.6 and the petitioner. The learned Trial Court passed the decree by judgment and decree dated 30th July, 2011 in favour of the respondent No.1 to 5 as well as permanent injunction against the petitioner.

5. On 6th November, 2012 aggrieved by the abovesaid judgment and decree, the petitioner filed an appeal along with an application under Section 5 of the Indian Limitation Act for seeking condonation of delay in filing of the appeal after a delay of 14 months and 5 days.

6. It was stated by the petitioner that his counsel did not inform about the passing of the judgment and decree. Therefore, he could not file the appeal in time. It was also stated that he is an illiterate and not aware of law, the delay was neither intentional nor deliberate. No prejudice would be caused to the respondents if the same is condoned. In case, it is not condoned off, the petitioner will suffer an irreparable loss.

7. Respondent No.2 to 5 filed joint reply and have alleged that the application was not maintainable as the delay of each day in filing of the appeal was not explained which is more than 14 months in filing of appeal. It was denied that the petitioner was not informed by his counsel about passing of the judgment and decree or that he is an illiterate person or that he is not aware of the law or that he was reminding his counsel to inform him.

8. Respondent No.6 also filed separate reply and stated that the petitioner last appeared before the court of Civil Judge on 20 th October, 2007 and thereafter, he never contacted his counsel as per his information.

9. By order dated 7th September, 2013, the trial court dismissed the appeal and the application filed by the petitioner under Section 5 of the Indian Limitation Act. The trial court observed that the impugned judgment and decree under appeal was passed on 30 th July, 2011, whereas the petitioner applied for certified copies of the impugned judgment on 30th August, 2012 and the same were received on 6th September, 2012 however, the appeal was filed by the petitioner on 6th November, 2012. It was observed that after exclusion of period of 5 days taken by the copying agency in preparation of certified copies of the impugned judgment and decree, there was delay of 13 months and 2 days thus, the petitioner was negligent and his approach was lackadaisical. It was observed that the pleas taken by the petitioner was found to be self contradictory and based on falsehood and vague.

10. i) In the case of Tarawanti v. State of Haryana AIR 1995 Punjab & Haryana 32, it held that "the person invoking the jurisdiction of the court for condontion of delay is required to satisfy the court that he was unable to present his appeal in time on account of some misadventure or incapacity or the circumstances beyond of his control of such sufficient cause which bonafidely prevented him in filing the appeal within the prescribed limitation". It also held that "sufficient cause means that cause which has prevented to the appellant to file the appeal within the statutory period".

ii) In Balwant Singh v. Jagdish Singh, AIR 2010 SC 3043 held that approaching to the court with clean hands, itself is a ground for rejection of

the application under Section 5 of the Indian Limitation Act. It further held that there should be a sufficient cause for condonation of delay and delay should not be on account of dilatory tactics, want of bonafide, deliberate inaction or negligence. It also held that the liberal approach does not mean doing injustice to the opposite party.

iii) In Collector of Central Excise Madras v. M. Md. Bilal and Company, (2000) 10 SCC 63 wherein the application for condonation of delay was dismissed , in view of absence of satisfactory or cogent explanation for delay.

iv) In Deepali Sharma v. Federal Bank Ltd., RFA No. 112/2010 wherein the application for condonation of delay was dismissed in view of vague averments, negligence, absence of sufficient cause and lackadaisical approach of the litigant in pursuing the appeal.

v) In Shiv Kumari v.Chaudhary Prem Singh & Ors. 165 (2009) DLT 307 wherein the application for condonation of delay was dismissed in the absence of sufficient cause for delay.

11. I have heard the learned counsel appearing on behalf of the petitioner. Having gone through the entire records, pleadings and the impugned order, particularly the reasons given in para 15 to 20, 27 and 28 in which the learned Trial Court has come to the conclusion that the petitioner has failed to show any sufficient cause which prevented him to file an appeal for a period of 13 months and 2 days.

12. Further the application filed by the petitioner is based on falsehood, no interference in the impugned order is called for. The said appeal filed by the petitioner was time barred.

13. Thus, there is no merit in the present petition. The same is dismissed. Pending application also stands disposed of.

(MANMOHAN SINGH) JUDGE DECEMBER 20, 2013