Indra Prakash vs K.R.Rastogi
2014 Latest Caselaw 3373 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 246/2014

%                                              28th July , 2014

INDRA PRAKASH                                            ......Petitioner
                          Through:       Mr. Gaurav Duggal, Adv.


                          VERSUS

K.R.Rastogi                                                ...... Respondent
                          Through:       Respondent in person

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    Respondent appears in person and seeks adjournment. Adjournment

cannot be granted without any reasonable cause, and simply because his

advocate chooses not to appear this case has to be adjourned, more so

because there is a very limited issue of the first appeal before the first

appellate court having been dismissed as barred by delay of 138 days and

which order dismissing the appeal as time barred is challenged in this

petition.




CM(M) 246/2014                                                                 Page 1 of 3
 2.       It has been held by the Supreme Court in the judgment in the case of

N. Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222 that once

condonation of delay is sought, impliedly there is some sort of negligence,

however, the same is not enough to dismiss the application for condonation

of delay unless there is want of good faith or gross negligence. Supreme

Court has observed that a person takes no benefit by filing an appeal with

delay.


3.       In the present case, I note that there are valuable rights of the parties

in issue ie all the petitioners/plaintiffs/landlords seeking possession of the

suit premises which was let out to the respondent-tenant, and appeal is filed

against dismissal of the application under Order 12 Rule 6 CPC.


4.       I put it to the respondent who is personally appearing that I can allow

the appeal with his consent subject however payment of costs but the

respondent still seeks adjournment.


5.       In this view of the matter, I do not find that delay of 138 days is such

great delay for the first appeal to be dismissed as time barred especially in

view of the ratio of the judgment of the Supreme Court in the case of N.

Balakrishnan Vs. M. Krishnamurthy (supra).


CM(M) 246/2014                                                                 Page 2 of 3
 6.    In view of the above, this petition is allowed and the delay of 138

days in filing of the first appeal before the first appellate court is condoned

and the first appellate court will now decide the first appeal in accordance

with law.


7.    Parties to appear before the District and Session Judge, East District,

Karkardooma Courts, Delhi on 26th August, 2014 and the District and

Sessions Judge will mark the first appeal for disposal to a competent court in

accordance with law.




JULY 28, 2014                                 VALMIKI J. MEHTA, J.

ib