Delhi High Court
Afroz Jahan vs S.A. Naqvi on 4 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 97/2014
% 4th April, 2014
AFROZ JAHAN ..... Appellant
Through: Mr. Brajesh Pandey, Advocate.
Versus
S.A. NAQVI ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.6293/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+RSA No.97/2014 and C.M. Nos.6238/2014 (stay), 6240/2014
(condonation of delay in filing) and 6241/2014 (condonation of delay in
refiling)
2. This Second Appeal is filed under Section 100 of Code of Civil
Procedure, 1908 (CPC) impugning the judgment of the first appellate court
dated 23.4.2013. By the impugned judgment, the first appellate court has
RSA97/2014 Page 1 of 5
dismissed the appeal filed by the appellant/defendant/tenant by refusing to
condone the delay in filing of the appeal.
3. The facts of the case are that the respondent/plaintiff/landlord
filed the suit for recovery of rent of the tenanted premises being property
bearing no.139A, first floor, Savitri Nagar, New Delhi-110017. The suit
premises were taken on rent for residential use at a rent of Rs.11,000/- per
month vide lease agreement Ex.PW1/A for 11 months pursuing from May,
2007. When the appellant/defendant/tenant vacated the suit property there
were arrears of 14 months rent payable totalling to Rs.1,54,000/-. Electricity
charges and water charges with respect to the tenanted premises were also
not paid. The subject suit for recovery of Rs.2 lacs accordingly came to be
filed against the appellant/defendant/tenant. The appellant/defendant had
appeared in the suit and written statement was filed on 8.9.2009. Issues
were framed by the trial court on 24.9.2010 and the case was fixed for
respondent/plaintiff evidence. Respondent/plaintiff filed the affidavit by
way of evidence on 7.1.2011 however neither the appellant nor her counsel
appeared to cross-examine the respondent/plaintiff. The right to cross-
examine was closed on 8.2.2011 and the case was adjourned to 23.3.2011
for defendant's evidence. The appellant/defendant yet again failed to
RSA97/2014 Page 2 of 5
appear, and therefore the suit was thereafter decreed by the ex parte
judgment dated 20.4.2011 for a sum of Rs.2 lacs with costs and interest.
4. The appellant claims to have derived knowledge of the ex parte
judgment and decree on 22.3.2012 when bailiff in execution went to the
premises of the appellant with the attachment warrant. Appellant pleaded
the following three reasons for not appearing in the suit after filing of the
written statement:-
(i) Appellant's husband had gone to Iran from 16.5.2010 to 9.6.2010 and
therefore could not contact her Advocate who failed to appear on 22.5.2010.
(ii) The appellant claimed to have suffered medical complications in her
pregnancy resulting in her admission to the hospital on 3.12.2010 and she
suffered an abortion on 6.12.2010 and consequently in this period for the
date of hearing on 13.12.2010, no one appeared for the appellant.
(iii) The appellant had to frequently visit alongwith her husband to
Lucknow because the mother of the her husband was seriously ill, and
consequently no one could appear on behalf of the appellant.
5. In my opinion, all the reasons given by the appellant are
unacceptable and malafide because there is no requirement in a civil case
RSA97/2014 Page 3 of 5
that the appellant except when he had to depose, must appear on every date
of hearing and what was required is only that her Advocate must appear.
Appellant has not given any notice to the earlier Advocate who did not
appear and obviously this must be either because Advocate's fees were not
paid or for some other reason there was disagreement with the earlier
Advocate. Even assuming that the Advocate only had to appear alongwith
the appellant, in my opinion, there is no reason right from 8.2.2011 to
22.3.2012 i.e over one year for the appellant not to have enquired about the
progress of the case or appeared in the suit. Either the appellant or her
husband or surely any of her family members could always have contacted
the Advocate and pursued the case. Actually, the conduct of the appellant,
in my opinion, shows that the appellant having not paid the charges towards
rent, electricity bills and water bills was for some or the other reasons
intending to delay the progress of the suit.
6. In view of the above, the first appeal filed under Section 96
CPC was dismissed by the first appellate court as barred by limitation and
holding that there was no sufficient cause to condone the delay. In view of
the above discussion, the appellate court has committed no illegality in
dismissing the appeal as barred by time.
RSA97/2014 Page 4 of 5
7. I may note that the lackadaisical attitude of the appellant
continued even after passing of the impugned judgment by the first appellate
court on 23.4.2013, inasmuch as, this appeal has been filed with a delay of
89 days and thereafter there is a delay of 126 days in re-filing. Therefore,
there is a total delay of 215 days and which is sought to be explained in an
extremely general manner by a one paragraph pleading that due to personal
difficulty the earlier counsel could not file the petition which was returned
and on account of some objections of the Registry. Neither the name of the
earlier counsel is given and nor the so called personal difficulty is mentioned
with the further fact that the objections which have been raised by the
Registry are such which could have been removed easily within a week at
the best, and hence there is no valid reason given for condoning the delay of
215 days in filing and re-filing the appeal.
8. In view of the above, I do not find any merit in the appeal, and
the same is therefore dismissed, leaving the parties to bear their own costs.
APRIL 04 2014 VALMIKI J. MEHTA, J.
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