Delhi High Court
Dps Gullani vs Punjab & Sind Bank Thr. Its ... on 5 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 71/2014
% 5th March, 2014
DPS GULLANI ......Appellant
Through: Appellant in person.
VERSUS
PUNJAB & SIND BANK THR. ITS CHAIRMAN ...... Respondent
Through: Mr. Jagat Arora, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.4216/2014(delay in re-filing)
For the reasons stated in the application, delay in re-filing is
condoned. CM stands disposed of.
RSA 71/2014
1. At this stage, I must state that one appeal cannot be filed against two
orders, one of dismissal of the first appeal by the court below as barred by
limitation and the second/subsequent order dismissing the review petition
RSA 71/2014 Page 1 of 5
against the final order, and therefore I am taking this regular second appeal
as being filed against the original order dated 16.9.2013.
2. The first appeal no doubt has been dismissed as barred by limitation
and ordinarily this Court would have been inclined to allow condonation of
delay and restore the first appeal to be heard on merits, however, the facts of
the present case show that this regular second appeal should not be allowed
for the reason that the original order of the trial court which is appealed from
is dated 25.8.2012 is an order by which the application of the appellant-
plaintiff under Order 9 Rule 9 CPC was dismissed inasmuch as, it was filed
after 12 years of the suit being dismissed in default. The order of the trial
court dated 25.8.2012 reads as under:-
"ORDER
Vide this order I shall dispose off an application under Order 9 rule 9
R/w Section 5 of Limitation Act, 1963, moved on behalf of the
applicant.
1. Applicant has stated that the main suit was pending before
this court and was fixed for plaintiff's evidence on 30.5.1996 and
thereafter adjourned to 01.11.1996. But on 31.5.1996, the suit was
again taken up on an application moved on behalf of defendant and
the suit was dismissed in default.
2. Applicant stated that the applicant was working at Punjab and
Sind Bank, Hemkunth Branch New Dlehi and was falsely implicated
RSA 71/2014 Page 2 of 5
in criminal case and there were total number of seven criminal cases
and 18 civil case the impact of which was that the applicant virtually
lost its mental capability to fight for survival in this earth and same
also caused disturbances into the family life of the applicant to such
an extent that the family life of the applicant could not withhold
uncalled tragedy and expired on 22.11.1997 and submitted that
above said grounds are bona fide one and the applicant is
approaching this court with a ray of hope of justice.
3. Further submitted that the applicant has also remained under
psychiatric treatment since 2006 for mental depression and he is still
under treatment with Safdur Jung Hospital and non-prosecution of
this case was neither intentional nor deliberate.
4. Accordingly, prayed for the condonation of delay in moving
the present application and consequently prayed for restoration of
the suit.
5. Reply to the present application filed on the behalf of the
defendant/respondent wherein he submitted that the present
application moved in the year 2008 is highly belated and the
documents produced with the application do not show any serious
ailments which prevented the applicant from moving this court
earlier. Few records produced for the period of 2006-2007 do not
bring anything to show as to what the nature of illness of
plaintiff/applicant which prevented him from approaching the court
within reasonable time.
6. I have heard the ld. Counsel for the parties and carefully
perused the records.
RSA 71/2014 Page 3 of 5
7. The case was dismissed in default on 31.5.1995 and the
present application is moved on 31.10.2008 i.e with delay of around
12 years. The wife of the applicant was expired on 22.11.1997. The
documents filed on record related to the psychiatric treatment
pertains to the year 2006-2007 which revealed that the applicant was
suffering from depression.
8. Though there are ample authorities to the fact that a liberal
approach should be adopted by the court while condoning the delay
in filing such applications and the delay is not material but the
explanation to the same is material.
9. But nothing reveals from the record which could be said to be
a sufficient ground for condoning the delay of almost 12 years in
moving the present application. Even if applicant was taking
psychiatric treatment since 2006 no reasonable explanation is given
by the applicant for not moving the proper application between the
year 1997 to 2006. Such a long delay could not be condoned unless
there are sufficient ground for doing so which are not there in the
present case. Filing of certain medical records which also do not
reveal serious illness could not give legs to application of applicant.
The liberal interpretation of the words 'sufficient cause' could not be
given to such an extent that may go against the interest of justice.
10. Application being merit less as does not disclose the reasons
of delay is hereby dismissed.
File be consigned to record room after making necessary
compliance."
3. The order of the first appellate court also shows want of good
faith in diligently filing the appeal within limitation, and therefore, I do not
RSA 71/2014 Page 4 of 5
find any reason to hold that any substantial question of law arises under
Section 100 CPC. In fact, I must note that the appeal would not be a regular
second appeal under Section 100 CPC inasmuch as neither the order of the
first court is a judgment and decree disposing of the suit and nor is the order
passed in appeal therefrom a judgment and decree. Therefore, though the
appeal is titled as second appeal, really it is the supervisory jurisdiction of
this Court which is invoked either under Section 151 CPC or Article 227 of
the Constitution of India.
4. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
MARCH 05, 2014 VALMIKI J. MEHTA, J.
ib
