Delhi High Court
Sh Vinod Kumar vs Sh Sarwan Kumar Sharma & Ors. on 17 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 17, 2014
+ RSA 203/2014
SH VINOD KUMAR ..... Appellant
Through: Mr. D.D. Sharma, Advocate
versus
SH SARWAN KUMAR SHARMA & ORS. ..... Respondents
Through: Mr. Suresh Chand, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M. No. 13016/2014 (u/S 5 of the Limitation Act)
There is delay of 94 days' in re-filing the accompanying appeal.
Notice.
Mr. Suresh Chand, Advocate, accepts notice of this application on
behalf of respondents and he submits that he will file his vakalatnama /
Power of Attorney within a week.
For reasons stated in the application, it is allowed and delay is
condoned.
Application is disposed of.
C.M. No. 13015/2014 (u/S 5 of the Limitation Act, 1963 r/w Sec. 151
CPC)
Learned counsel for applicant-appellant submits that this
RSA No. 203/2014 Page 1
application is not pressed as it has been inadvertently filed and infact,
there was delay of 196 days' in filing the first appeal.
In view of aforesaid, this application is dismissed as not pressed.
RSA No. 203/2014 & C.M. No.13014/2014 (for stay)
Respondents' suit for possession, recovery, damages etc. stood
decreed by the trial court and appellant's first appeal has been dismissed
vide impugned judgment of 15th January, 2014.
The factual matrix of this case already stands noticed in the
impugned judgment and needs no reiteration. A bare perusal of the
impugned order reveals that there is delay of two months in filing the first
appeal.
Learned counsel for appellant submits that appellant was under the
bona fide impression that the period of limitation to file the first appeal is
ninety days and the appeal has been filed on the 94th day after passing of
the impugned judgment.
Mr. D.D. Sharma, learned counsel for appellant, submits that he
was the counsel before the First Appellate Court and the issue of
limitation was no raised in the written statement filed by the opposite side
and during the course of arguments also no issue was raised on the
question of limitation.
Learned counsel for respondents disputes the aforesaid stand taken
on behalf of the appellant and submits that the question of limitation goes
to the root of the matter and has to be considered by the court at the first
instance and it has been categorically noted in the impugned judgment
that during the course of arguments, it was not clarified by counsel for
RSA No. 203/2014 Page 2
appellant as to how the appeal is not time barred.
Upon hearing and on perusal of impugned judgment, trial court
judgment and the material on record, I find that a party is not to be taken
by surprise and an opportunity ought to be given to a party like the
appellant to file an application seeking condonation of delay. The
expression 'sufficient cause' under Section 5 of the Limitation Act must
receive a liberal construction so as to advance substantial justice and
generally delay in preferring appeals are required to be condoned in the
interest of justice where gross negligence or deliberate inaction or lack of
bona fides is not imputable to the party seeking condonation of the delay.
Cause of substantial justice deserves to be preferred over the technical
considerations. Substantial justice being paramount and pivotal, the
technical considerations should not be given undue and uncalled for
emphasis. It has been so reiterated by the Apex Court in Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy
& ors. (2013) 12 SCC 649.
In the instant case, the appellant was taken by a surprise and was
purportedly unaware that the appeal filed by him is time barred. Though
conduct of appellant displays negligence, but not a gross one. In such a
situation, by applying the ratio of Apex Court's decision in Esha (supra),
I am of the considered view that an opportunity ought to have been
afforded to appellant to file an application seeking condonation of delay
in filing the first appeal, which is to be decided on facts and the law.
In view of aforesaid, this appeal is allowed subject to cost of
`25,000/- to be deposited with the Prime Minister's Relief Fund within
two weeks. Impugned judgment of 15th January, 2014 is accordingly set
RSA No. 203/2014 Page 3
aside Appellant is granted four weeks' time to file an application seeking
condonation of delay before the First Appellate Court and receipt of
deposit of cost be placed before the First Appellate Court. Needless to
say if it is not so done, then the impugned judgment shall remain
effective.
This appeal is allowed in aforesaid terms.
(SUNIL GAUR)
JUDGE
NOVEMBER 17, 2014
r
RSA No. 203/2014 Page 4
