Delhi High Court
Dda vs Brahm Prakash on 12 January, 2015
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.9/2015
Decided on : 12th January, 2015
DDA ..... Appellant
Through: Mr.J.H.Jafri, Adv.
versus
BRAHM PRAKASH ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
CM No.465/2015
1. Allowed subject to deficiency being rectified.
2. The application stands disposed of.
C.M. No.466/2015
1. This is an application seeking condonation of delay of 35 days
in filing the instant appeal.
2. For the reasons stated in the application as sufficient cause has
been shown, the delay of 35 days in filing the instant appeal, is
condoned and the application is allowed.
R.S.A. No.9/2015
1. The learned counsel for the appellant has stated that there are
substantial questions of law involved in the matter, which are as
follows (Page 19 of the petition):
"i) Whether the dismissal of RCA resulting from
the dismissal of application under Section 5 of
Limitation Act amounts to denial of substantial
justice?
ii) Whether substantive justice can be
sacrificed/denied at the alter of mere technicalities?
iii) Whether the Learned First Appellate Court's
order suffers from the vice of perversity?"
2. I have perused these questions. However, none of them is a
substantial question of law.
3. Before dealing with the submission made by the learned
counsel for the appellant, it may be pertinent to mention that the
respondent had filed a suit for permanent injunction contending that
he was in occupation of a parcel of land forming part of Khasra
No.15/23 of Village Najaf Garh admeasuring 3 bigha 7 biswa. It was
his case that he had constructed a property over the said parcel of land
and the appellant/defendant was threatening to dispossess him. The
appellant/defendant filed their written statement and took various
preliminary objections with regard to the maintainability of the suit.
4. The case set up by the respondent/plaintiff was that he had been
declared an 'asami' by the revenue authorities in respect of the
aforesaid parcel of land.
5. The case set up by the appellant/defendant was that a notice
under Section 53B of the DDA Act had not been given to them and
that the land in question was a acquired parcel of land and it had been
handed over to the appellant/plaintiff.
6. It was also contended that the revenue authorities did not have
the jurisdiction to decide the question of the respondent/plaintiff being
an 'asami' in respect of the parcel of land because title of the same
vested with the respondent/plaintiff.
7. On the pleadings of the parties, the following issues were
framed:
"1. Whether the plaintiff is entitled to decree of
permanent injunction, as prayed for ? OPP.
2. Whether the plaintiff has no locus standi to file
the present suit? OPD.
3. Whether the suit of plaintiff is not maintainable
for want of mandatory statutory under Section 53 DD
Act? OPD.
4. Relief."
8. Issue No.1 with regard to the permanent injunction in favour of
the respondent/plaintiff is concerned, the plaintiff had examined four
witnesses while the appellant/defendant had examined only one
witness DW-1, Sh.Baljeet Rathi, Kanungo. The appellant/defendant's
witness himself had admitted that the respondent/plaintiff was in
possession of the said parcel of land during his entire posting.
9. The factum of respondent/plaintiff being in possession was
taken as one of the vital ground as acceptance of the case of the
respondent/plaintiff and, therefore, it was prayed that the
respondent/plaintiff could not be dispossessed from the land in
question except in accordance with the due process of law.
10. The trial court did not decide the question with regard to the
respondent/plaintiff being the asami of the land in question nor was it
within its domain.
11. The appellant/defendant ought to have taken appropriate action
if they felt that the revenue authorities had wrongly decided the
respondent/plaintiff to be an asami in respect of the parcel of land in
question, which apparently it has not taken.
12. Feeling aggrieved by the aforesaid judgment/decree passed in
favour of the respondent/plaintiff, the appellant preferred an appeal
before the first appellate court against the decree of permanent
injunction. This appeal was filed belatedly with a delay of 531 days
although an application under Section 5 of the Limitation Act, 1963
was filed by the appellant/defendant.
13. The explanation furnished by the appellant/defendant was not
accepted by the first appellate court to be enough to constitute
sufficient cause within the definition of Section 5 of the Limitation
Act, 1963 and accordingly vide order dated 04.08.2014, the delay of
531 days taken by the appellant/defendant in filing the appeal was not
condoned and the appeal was treated as barred by time.
14. The order dated 04.08.2014 is a reasoned order and there is a
reference to number of authorities of the Supreme Court showing that
the law of limitation both for the private party and the Government is
the same and while condoning the delay what is to be seen are the
bona fides of the parties seeking condonation of delay rather than the
quantum of delay.
15. The question that the explanation furnished by the
appellant/defendant was not considered to be bona fide and genuine
so as to constitute 'sufficient cause' is a matter of discretion to be
exercised which the first appellate court has done and passed the order
dated 04.08.2014. This court, merely being a superior court to the
first appellate court, cannot sit over the same and upset the finding of
the first appellate court.
16. Other than this, I feel that no question of law much less a
substantial question of law is involved in the matter.
17. I accordingly feel that the present appeal does not raise any
substantial question of law. The same is dismissed.
V.K. SHALI, J
JANUARY 12, 2015/dm
