Delhi Development Authority vs M/S Satish Steel Traders And Ors.
2015 Latest Caselaw 905 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      RSA No.325/2014
                                      Decided on : 2nd February,2015


    DELHI DEVELOPMENT AUTHORITY                            ..... Appellant
                       Through:     Mr.Arun Birbal, Adv.

                       versus

    M/S SATISH STEEL TRADERS AND ORS.                     ..... Respondent

                       Through:     Mr.R.K.Jain and Mr.Rajesh Garg,
                                    Advs.

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI
    V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against the order dated

30.05.2013. As a matter of fact, the appellant had earlier filed a civil

revision petition against rejection of an application filed by the

appellant seeking condonation of delay of 310 days by the learned

ADJ in RCA No.59/2013.

2. My learned predecessor vide order dated 25.09.2014 treated the

order dated 30.05.2013 rejecting the application filed by the appellant

seeking condonation of delay of 310 days in filing the RCA No.59/2013 as an appealable order in view of a Division Bench

Judgment of the Supreme Court in Shyam Sunder Sarma v. Pannalal

Jaiswal & Ors.; AIR 2005 SC 226. This is how the Civil Revision

Petition has been treated as a regular second appeal.

3. The grievance of the appellant in the second appeal is that the

learned first appellate court, without going into the merits of the case,

has fallen into perversity in rejecting the application of the appellant

seeking condonation of delay of 310 days in filing RCA No.59/2013

without considering the fact that the appellant is a public body and

there are certain inbuilt procedural delays which have occurred on

account of the lax attitude of the various officials of the appellant

which cannot be treated as negligence on the part of the officials of

the appellant so as to warrant the dismissal of the application seeking

condonation of delay of 310 days in filing the RCA No.59/2013.

Accordingly, it has been prayed that the said delay may be condoned

and the matter be remanded back to the first appellate court for the

purpose of deciding the appeal on merit.

4. Both the learned counsel for the parties in support of their

contention have relied upon the judgments of the Apex Court as well as of this court in order to support their submissions.

5. I have carefully considered the submissions made by the

respective sides and have also gone through the orders passed by the

trial court as well as the first appellate court vide orders dated

05.05.2012 and 30.05.2013 respectively.

6. Before dealing with the issue raised in the present appeal, it

may be pertinent to give brief facts of the case.

7. The respondent herein had filed a suit for permanent and

mandatory injunction. The injunction prayed for was that a mandate

be issued in favour of the respondent/plaintiff and against the

appellant/defendant to execute all the necessary documents which are

required for conversion of the leasehold rights in property bearing

No.X-20, Naraina, Delhi into freehold as they were purchasers of the

suit property.

8. The said case was set up by the respondent/plaintiff on the basis

of the fact that in the year 1977, Loha Mandi was shifted from Motia

Khan to Naraina. On 26.07.1975, one Sh.L.N.Saraf was allotted the

aforesaid warehousing plot bearing No.X-20 measuring 300 square

yards in Naraina and the possession of which was handed over to him on 29.07.1975 by the Assistant Engineer of the DDA subject to the

condition that he shall hand over the possession of the land in his

occupation at Motia Khan to the DDA.

9. It was alleged by the DDA that though Mr.L.N.Saraf had taken

the possession of the land at Naraina, however, he did not hand over

the possession of the land at Motia Khan to the DDA.

10. On 04.02.1976, a letter was sent by the appellant/DDA to

Sh.L.N.Saraf for production of a certificate showing the proof of

handing over of the site at Motia Khan along with updated damages to

the DDA. However, this was not responded to by Sh.L.N.Saraf and

on the contrary on 27.10.1977, he sold the property at Naraina by

executing an agreement of sell in favour of the respondent/plaintiff

for a sum of Rs.2 lakhs who subsequently filed the suit in question for

permanent and mandatory injunction against the appellant.

11. The matter was contested by the present appellant by filing the

written statement. Thereafter a application under Order 12 Rule 6

CPC was filed, reply was called and the court also recorded the

statement of Sh.P.S.Joshi, Deputy Director Industrial, DDA. He had

made a statement that the DDA has no objection in execution of conveyance deed subject to clearance of damages prior to 1975 along

with interest and the usual terms and conditions are fulfilled by the

respondent/plaintiff as per the DDA Policy. Treating this as an

admission under Order 12 Rule 6 CPC, the learned Trial Court vide

order dated 05.05.2012 decreed the suit of the respondent/plaintiff

and directed the appellant/defendant to execute the conveyance deed

with regard to suit property i.e. X-20, WHS, Loha Mandi, Naraina,

Delhi in favour of the respondent/plaintiff without framing any issues

or without deciding the question as to whether other conditions were

fulfilled or not.

12. It may be pertinent to mention here that the present

appellant/defendant had taken a specific plea that the possession of

suit property was handed over to Sh.L.N.Saraf subject to the

condition that he shall produce a certificate showing that he had

handed over the possession of his erstwhile plot of land at Motia

Khan to the DDA. This plea was not dealt with by the learned trial

court at all.

13. It may be pertinent to mention that curiously the respondent

herein had not impleaded Mr.L.N.Saraf as a party in the suit although Mr.L.N.Saraf was not only a necessary but also a proper party to be

impleaded in the suit. Thus in a shoddy manner, the learned trial

court without realizing the implications of the matter, passed a

judgment and decree in favour of the respondent/plaintiff and against

the appellant/DDA commanding them to execute the conveyance

deed with regard to the suit property subject to the

respondent/plaintiff furnishing the indemnity bond before the DDA

and complying with the terms and conditions of the appellant/DDA's

policy.

14. The appellant feeling aggrieved preferred first appeal after a

delay of 310 days. However, they filed an application seeking

condonation of delay. The reasons given by the appellant were that

the judgment was passed on 05.05.2012 and the papers were sent to

the panel advocate who applied for the certified copy of the said order

on 23.08.2012. The certified copy of the judgment and decree along

with case file was then forwarded by panel advocate to the DDA. In

the meantime, the dealing assistant who was in charge of the file,

retired on 30.09.2012 without intimating his successor about the case

file. The file was located on 01.01.2013. It was processed for the purpose of obtaining legal opinion as to whether an appeal is to be

filed in the matter or not. The file was sent to the Chief Legal

Advisor, DDA on 31.01.2013 who noted down his advice on

05.02.2013. Thereafter the file was again sent to the Chief Legal

Advisor for entrustment of the matter to a counsel. The case was

entrusted to the counsel on 01.03.2013 and communicated to the

counsel on the same date. However, due to strike call given by the

Bar Association at Dwarka Courts, the counsel could not take

immediate steps for filing the appeal. Eventually, the file was

prepared and sent for signatures and thereafter the application has

been filed on 10.04.2013. This entire process has resulted in a delay

of 310 days which according to the appellant constitutes sufficient

cause which was beyond their control and accordingly it was prayed

that the said delay be condoned. It had also been stated in the

application that the delay caused was inadvertent and there was no

negligence, inaction or lack of bona fide on the part of the appellant in

preferring the appeal and, therefore, the same may be condoned.

15. The respondent herein contested this plea of the appellant for

condonation of delay.

16. The learned first appellate court took a very pedantic view of

the matter and rejected the application seeking condonation of delay

observing that there are no two sets of law of limitation applicable to

private citizens and the government bodies without realizing the fact

that there had been inherent defect in the case of the

respondent/plaintiff inasmuch as the suit of the respondent was

allowed by the trial court summarily without conducting trial and,

therefore, the first appellate court ought to have set aside that decision

which it failed to do. It is well settled that the length of delay is not

material in all cases unless and until it is inordinate, what is material

is the bona fide of a party in filing the appeal. Further, while seeking

the bona fides of a party, the court must also see the merits of the

appeal. Prima facie, more so, where a judgment and decree is passed

against a government body where the possibility of mix up of the staff

cannot be completely ruled out. Thus, the very fact that the judgment

of the first appellate court is suffering from perversity is itself a

substantial question of law.

17. The submission made by the learned counsel for the respondent

that there was gross negligence on the part of the appellant in filing a civil revision petition against the impugned order although the second

appeal was permissible does not persuade the court to accept the

same.

18. From the submissions made by the learned counsel for the

respondent, all that this court gathers is that without going into the

merits of the case and see as to whether the respondent ought to have

got the relief of mandatory injunction, the respondent wants to have a

cake walk only on technicalities when there is an inherent defect in

the case of the respondent inasmuch as not only he had not chosen to

make Mr.L.N.Saraf as a party to the suit, but also the learned trial

court had fallen into an error by passing judgment only on the basis of

admission by simply recording the statement of the Deputy Director

(Industrial) of the appellant. The aforesaid statement of the Deputy

Director (Industrial) at best can be treated to be a statement recorded

under Order 10 of CPC. One fact which has been ignored by the

learned trial court is that no doubt Mr.P.S.Joshi, the Deputy Director

(Industrial), has stated that the DDA has no objection execution of the

conveyance deed in favour of the respondent/plaintiff, but it has to be

subject to satisfaction of the usual terms and conditions of the DDA's police and what those conditions were has neither been specified by

him nor the court has taken into consideration the same or tried to

find out what those conditions were when the appellant had taken a

specific defence that these conditions were that an alternative

allotment was made to Sh.L.N.Saraf subject to his returning the

original land occupied by him at Motia Khan. A person cannot be

permitted to take advantage of an alternative allotment under a

scheme and yet retain the original land. This will be a travesty of

truth. Therefore, on the face it, these facts clearly show that the

appellant had a prima facie good case and while seeking condonation

of delay one of the prime considerations is that what are the merits of

the matter which is sought to be agitated or raised by a party who is

seeking condonation of delay. Therefore, the first parameter in my

view was fully satisfied by the appellant. With regard to the

condonatoin of delay, the case law is replete which broadly lays down

the principles that the length of delay is not important, but what is

important are the bona fides of a party.

19. The court has also approved the factum that although there are

no two separate laws of limitation, one applicable to the private citizens and other to the government bodies, but on account of the

impersonal nature of the functioning of the Government, certain

amount of margin has to be given to the Government bodies for the

purpose of processing all the files.

20. The learned counsel for the respondent has also not disputed

that these propositions have been laid down by the courts day in and

day out. Thus, there being unanimity on the principles of seeking

condonation of delay, the court has to see following aspects : 1) bona

fides of a party in prosecuting the matter, 2) the length of delay and

efforts made by a party 3) some amount of margin to be given to a of

a government body in processing the papers. 4) The possibility of the

officials of an impersonal body like DDA, which is notorious for its

functioning to help the other side. All these factors, if taken into

consideration in totality, it cannot be said that the explanation which

has been given by the appellant does not constitute sufficient cause.

21. I, therefore, feel that the first appellate court ought to have

condoned the delay as in my considered opinion there was reasonable

sufficient cause shown by the appellant by giving the various dates

and the explanations and the first appellate court ought to have decided the matter on merit. Since this has not been done, therefore,

the judgment of the first appellate court deserves to be set aside and in

normal circumstances, the matter ought to have been remanded back

to the trial court, however, in the peculiar facts of the case, I feel that

this court would be well within its powers to exercise the power of

superintendence under Article 227 of the Constitution of India and set

aside the order dated 05.05.2012 passed by the trial court also

inasmuch as the same is also suffering from perversity on account of

the fact that no judgment and decree could have been passed by the

learned Civil Judge, as has been done in the present case, by simply

recording the statement of the Deputy Director of the appellant as he

had specifically stated that they had no objection to the execution of

the conveyance deed in favour of the respondent/plaintiff. However,

the same could not have been done unless and until all the formalities

had been completed and especially when the appellant had taken a

specific plea that the respondent had not handed over possession of

the land in lieu of which the plot was allotted to Sh.L.N.Saraf.

Therefore, the onus was on Sh.L.N.Saraf or the plaintiff to show that

the land at Motia Khan in lieu of which he got the land at Naraina had been duly handed over to the DDA, which has not been discharged.

22. For the reasons stated above, the appeal is allowed and the

judgment of the first appellate court dated 30.05.2013 as well of the

trial court dated 05.05.2012 are set aside and the matter is remanded

back to the trial court to be decided afresh after framing of issues and

permitting the parties to adduce their respective evidence. Let the

parties appear before the court on 10.03.2015.

V.K. SHALI, J FEBRUARY 02, 2015/dm