Delhi High Court
Bhim Sain Gupta (Since Deceased, ... vs Dda on 27 November, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.259/2013
Date of Decision : 27.11.2013
BHIM SAIN GUPTA (SINCE DECEASED, THR LRS)
..... Appellant
Through: Mr. Y.S. Chauhan, Advocate.
versus
DDA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellants, who are the
legal heirs of the original plaintiff Sh.Bhim Sain Gupta, against the
judgment dated 17.07.2013 passed by the learned ADJ dismissing the
appeal of the appellants on the ground of the same being hopelessly
barred by the period of limitation as the delay of approximately 2400
days in preferring the appeal before the learned ADJ was not condoned.
2. I have heard the learned counsel for the appellants and gone
through the record.
3. Briefly stated, the case filed by the original plaintiff Sh.Bhim Sain
Gupta before the learned Civil Judge was for a decree of possession and
mandatory injunction in the year 1990 where he had alleged that he was
in possession of a shop as a tenant constructed on Khasra No.248/114/1
situated in revenue estate of Village Yusuf Sarai, Delhi and was carrying
business under the name and style of M/s Bhim Sain Gupta and Sons. It
was alleged that during the course of emergency, his shop was
demolished by the enforcement staff of the respondent/DDA without any
valid justification and he was granted a demolition slip with an assurance
that an alternative site would be allotted to him in course of time. Since
no alternative site was allotted to him, he filed the suit for possession of
the shop in question which incidentally was no more in existence. In the
alternative, the Sh. Bhim Sain Gupta claimed that another shop be
allotted to him by the respondent/DDA. The suit filed by Sh.Bhim Sain
Gupta was contested by the DDA both on preliminary objection as well
as on merits. On the pleadings of the parties, the following issues were
framed:
"1. Whether the plaintiff has any cause of action
to file the present suit? OPP
2. Whether the suit is barred by limitation?
OPD.
3. Whether the plaintiff is entitled for the
recovery of possession of shop measuring 18 x
Sarai as prayed for? OPP.
4. Whether the plaintiff is entitled for the relief
of mandatory injunction as prayed for? OPP.
5. Whether the suit is bad u/s 80 CPC and u/s
53-B of DD Act? OPD.
6. Whether the suit land falling in Khasra
No.248/114/1 is acquired and the plaintiff has not
right to the same? OPD.
7. Whether the plaintiff has no right, title or
interest to the suit land in view of the para No.2
of WS of defendant no.3 DDA? OPD-3.
8. Relief."
4. The court dismissed the suit on merits vide order dated 01.08.2006
although prima facie on the face of it, the suit for possession ought not to
have been entertained as it was filed beyond a period of 12 years in terms
of Article 65 of the Limitation Act, 1963.
5. The appellant preferred an appeal being RCA No.42/2013 against
the dismissal of the suit vide order dated 01.08.2006 after a lapse of
approximately 2400 days. The appeal of the appellant/plaintiff was
accompanied with an application under Section 5 of the Limitation Act,
1963 seeking condonation of delay of approximately 2400 days in filing
the appeal. The reason given for the delay by the appellants was that the
suit had been filed by their father Sh.Bhim Sain Gupta, who was not
keeping well from the year 2005-2007 and he expired in the year 2007
and thereafter the appellants, the legal heirs late Sh.Bhim Sain Gupta,
while scanning through the documents of the deceased Sh.Bhim Sain
Gupta, came across the papers of the suit and accordingly they instructed
their counsel who filed the present appeal. This had caused the delay in
filing the appeal.
6. The learned first appellate court did not accept the explanation
tendered by the appellants and dismissed the application seeking
condonation of delay as it did not constitute „sufficient cause‟. The said
order was passed on 17.07.2013.
7. Feeling aggrieved, the present regular second appeal has been
preferred. On the face of it, the appeal does not involve any substantial
question of law warranting the appeal being entertained by this court.
Even otherwise, if one goes through the application seeking condonation
of delay filed by the appellants before the first appellate court, it clearly
shows that it had been filed in a most casual manner and no sufficient
cause has been shown for not preferring the appeal in time. This is
evident from the fact that the title of the application shows that it has been
filed under Section 21(3) of the Central Administrative Act, 1985 r/w
Section 151 CPC. I fail to understand as to how the Central
Administrative Act, 1985 has been cited while as I feel that the reference
was sought to be made by the appellants to the Administrative Tribunals
Act, 1985. Even in para 4 of the application where reasons for not
preferring the appeal for 2400 days approximately are given, only
generalized statements have been made that late Sh.Bhim Sain Gupta was
not well during the period 2005-2007 and later he died on 12.05.2007.
No medical document in respect of late Sh.Bhim Sain Gupta was attached
to the application. Even the word „sufficient cause‟ which is a ground for
condoning the delay under Section 5 of the Limitation Act, 1963, has not
been used in the application, which clearly shows that the application has
been drafted in a most casual manner and only a feeble attempt was made
by the appellants to see that the appeal is entertained after the delay of
2400 days approximately. I feel that the learned first appellate court was
right in rejecting the application seeking condonation of delay. There is
no question of law arising from the instant appeal. Accordingly, the same
is dismissed.
V.K. SHALI, J.
NOVEMBER 27, 2013
dm
