Delhi High Court
Rajbir Singh vs Ajay Pal & Anr. on 6 July, 2015
Author: Rajiv Shakdher
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 374/2014
RAJBIR SINGH ..... Appellant
Through: Mr. Rajat Aneja and Mr. Vijay
Kasana, Advs.
versus
AJAY PAL & ANR ..... Respondents
Through: Mr. Madan Lal Kalkal, Adv. for R1.
Mr. S.R. Sharma, Adv for DDA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 06.07.2015
CM Nos.13477/2014 (for condonation of delay of 1134 days in filing the
appeal) and CM No.13478/2014 (for condonation of delay of 85 days in
re-filing the appeal)
1. The first application, i.e. CM No.13477/2014, is an application
seeking condonation of delay in filing the appeal against the final judgment
and decree dated 13.12.2010. The second application, i.e. CM
No.13478/2014, is an application seeking condonation of delay in re-filing
the appeal. Even as per the applicant/appellant, the delay in re-filing is of
nearly 85 days.
2. Insofar as the delay in filing the appeal is concerned, according to the
applicant/appellant, the delay is of 1134 days.
3. These applications have been filed in the background of following
brief facts:
3.1 Respondent No.1 filed a suit for specific performance seeking to
enforce an agreement to sell/bayana receipt dated 23.7.2003. The court
RFA 374/2014 page 1 of 4
while decreeing the suit instead of ordering specific performance directed
the recovery of Rs.10,80,000/- with interest at the rate of 10 per cent per
annum from the date of the institution of the suit till its realization along
with cost.
3.2 The applicant/appellant says that the delay occurred on account of the
lawyer's fault, inasmuch as, though instructions has been given to his
lawyer, one Mr. Sunil Prasad, Advocate, no steps were taken by him to file
an appeal against the aforementioned judgment and decree.
3.3 It is the assertion of the applicant/appellant that, for the first time, he
became aware of the fact that no appeal had been filed when a notice dated
30.1.2014 (was affixed on the property of the applicant/appellant, pursuant
to directions of the executing court), in March, 2014.
3.4 It is submitted that the applicant/appellant engaged another counsel on
25.3.2014 and simultaneously made enquiries with his erstwhile counsel Sh.
Sunil Prasad. It is averred that his enquiries with Mr. Sunil Prasad revealed
that an appeal, vide diary No.85815/2011, had been filed by him on
27.6.2011, which had been returned by the Registry with objections. Sh.
Sunil Prasad, according to the applicant/appellant had taken no steps
towards removal of objections and having the appeal listed.
3.5 The applicant/appellant also avers that in view of the conduct of
Mr.Sunil Prasad, a complaint was lodged with the Bar Council of Delhi, on
3.4.2014; which I am told, is pending consideration.
3.6 The instant appeal was filed, I am informed by Mr. Aneja, on
5.4.2014. The Registry's record though shows the date of filing as
21.04.2014. Qua this appeal as well, there were objections recorded by the
RFA 374/2014 page 2 of 4
Registry, which lead to a re-filing, after removal of the objections, on
17.8.2014.
3.7 The non-applicant/respondent, vide his reply, has vehemently
opposed the condonation of delay, not only on the ground of the vast period
which has elapsed but also on the ground that the application is not bona
fide.
3.8 For this purpose, the respondents counsel has referred me to the
proceedings dated 1.6.2012, held before the executing court, in execution
petition No.67/2011. My attention has been drawn to the fact that on that
date, the applicant/appellant (who was the judgment debtor in the execution
proceedings) was present, and that, he had indicated to the court that the
decretal amount will be paid.
3.9 It is, therefore, the contention of the learned counsel for the
respondents that the assertion of the applicant/appellant that he became
aware of the non-institution of the appeal only in March, 2014 pursuant to
affixation of notice issued by the executing court, does not stand reason.
4. I have heard Mr. Aneja in support of the captioned applications and
the counsel for the respondent in opposition. I am persuaded to hold in
favour of the respondents as the applicant/appellant has clearly been tardy,
in his approach, in the matter. The injury caused due to procrastination is
compounded by the lack of candour. Illiteracy of the applicant/ respondent
which is trotted as another reason for delay cannot be used to gloss over the
circumstances which point to knowledge of non-institution of the appeal.
4.1 The circumstances obtaining in the matter are indicative of the fact
that the applicant/appellant would have had knowledge of non-filing
RFA 374/2014 page 3 of 4
of the appeal by his erstwhile Advocate, Mr. Sunil Prasad, at least by
1.6.2012, if not earlier. The delay between that date and the filing of the
appeal is little less than two (2) years. The instant appeal was filed only on
21.4.2014.
4.2 As noted above, qua the instant appeal there is a delay of 1134 days in
filing and 85 days in re-filing. I see no reason to condone the delay, there
being complete absence of sufficient cause and bonafides, as well.
5. The applications are disposed of.
6. Consequently, the appeal is rendered infructuous and is, accordingly,
dismissed.
RAJIV SHAKDHER, J
JULY 06, 2015
s.pal
RFA 374/2014 page 4 of 4
