Slum & Jj Department, Mcd vs Narain Dass
2013 Latest Caselaw 857 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                     R.S.A. NO.42 OF 2012 & CM 4579/2012

                                          Decided on : 20th February, 2013

SLUM & JJ DEPARTMENT, MCD                       ...... Appellant
              Through: Counsel (presence not given)

                        Versus

NARAIN DASS                                    ...... Respondent
                      Through:     Mr. Nitesh Kumar Singh, Adv.

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

V.K. SHALI, J. (ORAL)

CM 4580/12 (delay of 250 in filing) CM 4581/2012 (delay of 230 days in re-filing)

1. This order shall dispose of an application bearing CM no.4580/12

u/S 5 of the limitation Act seeking condonation of 250 days delay

in filing the present appeal and an application bearing CM

no.4581/2012, under Section 151 CPC seeking condonation of 230

days delay in re-filling the appeal.

2. At the outset, it may be contended that Rule 5 of Chapter I Part

A(a), Delhi High Court Rules lays down that once an appeal is

under objection, the objections are to be removed within a week

and if the objections are not removed within a week and thirty days

in aggregate, then the delay in re-filing of the appeal shall be

treated as the delay in original filing. The relevant 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.

3. In view of the aforesaid Rule, the application u/S 151 seeking

condonation of 230 days delay in re-filing the appeal cannot be

allowed as the delay of 230 days will have to be treated as a delay

in original filing.

4. The application u/S 5 of the Limitation Act is for condonation of

250 days delay. As a matter of fact, there is a total delay of 460

days. It has been stated by the learned counsel for the appellant

that the judgment of the learned Civil Judge, Tis Hazari Courts

was pronounced on 25.11.2009, the certified copy was applied on

30.11.2009. The copy was prepared on 8.12.2009 and it was

received by the counsel on 11.12.2009. The counsel collected the

copy and delivered the same to the Department on 14.12.2009.

5. The matter was examined by the Department from 14th to 31st

December, 2010 when the approval of the Additional

Commissioner was granted for the purpose of challenging the

order. It is really very strange that the officials of the appellant

took a decision at a snail pace as to whether an appeal is to be filed

or not. They practically took almost a year to decide the same.

The Additional Commissioner who is responsible officer ought to

have been vigilant at least for fixing of the responsibility as to who

was responsible for causing this delay, when he knew that the

appeal has to be filed in a time bound manner. Thereafter, the

explanation which has been given by the applicant in the

application is that the counsel was engaged and the file was tagged

along with some other file and it could not be traced. No dates

have been given by the appellant as to when the file was misplaced

and when it was traced, therefore, it clearly shows that the

appellants are not giving the facts correctly in their application. A

casual approach has been followed by the appellants in drafting

their application that even the word 'sufficient cause' has not been

used and the only thing which has been averred in the application is

that the delay in filing the appeal was not deliberate.

6. For condonation of delay, the delay should not only be

unintentional but also for some reason which was beyond the

control of the party so as to constitute 'sufficient cause'.

7. In the instant case, there is not even an iota of averment to the

effect that the appeal could not be filed because of 'sufficient

cause'.

8. I therefore, feel that the appellants have been grossly negligent in

filing the appeal. There is no separate law of limitation for

corporations, I feel that the delay of almost 460 days is without

there being any 'sufficient cause'. Accordingly, the delay is not

condoned. Since the delay is not condoned, the appeal itself is

time barred. Ordered accordingly.

V.K. SHALI, J.

FEBRUARY 20, 2013 RN