Beena Kumari vs Raj Kumar
2016 Latest Caselaw 5370 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+   RSA 335/2015 and C.M. Appl. No. 19233/2015 (under Section 151
    CPC, for stay) 19234/2015 (Under Order 41 Rule 27 CPC for
    production of additional evidence)

    BEENA KUMARI                                         ..... Appellant
                       Through:     Mr. Sanjay Kr. Mishra, Advocate.

                       versus

    RAJ KUMAR                                          ..... Respondent
                       Through:     Ms. Shashi Jaiswal and Ms. Kritika
                                    Goswami, Advocates.
    CORAM:
    HON'BLE MR. JUSTICE VALMIKI J. MEHTA

                       ORDER

% 16.08.2016

1. This Regular Second Appeal under Section 100 CPC has been

filed by the defendant/appellant against the impugned judgment dated

16.3.2015 of the First Appellate Court decreeing the suit for recovery

of money. The suit had been dismissed by the trial court vide its

judgment dated 19.11.2012.

2. One of the grounds urged on behalf of the appellant before this

Court is that against the judgment of the trial court dated 19.11.2012

the first appeal was filed after about one and half years on

RSA 335/2015 page 1 of 4 16.4.2014, with an application for condonation of delay, however, the

first appellate Court without first deciding and allowing the

application for condonation of delay, has disposed of the appeal itself

on merits.

3. I have gone through the record of the first appellate court and it

is seen that the first appeal was filed on 16.4.2014 against the

judgment of the trial court dated 19.11.2012, i.e. appeal has been

admittedly filed beyond the period of 30 days of passing of the

judgment dated 19.11.2012. Certified copy of the judgment filed

before the first appellate court shows that time from 3.3.2014 to

7.3.2014 was taken for applying and obtaining the certified copy of

the judgment of the trial court and therefore respondent/plaintiff at

best was entitled to addition of 5 days in the limitation for filing of the

appeal whereas the delay is approximately from 23.12.2012 till

16.4.2014.

4. In view of the obvious error committed by the first appellate

court in deciding the first appeal on merits without first deciding the

application for condonation of delay; and which must possibly be

RSA 335/2015 page 2 of 4 because none of the counsels for the parties would have pointed out

this fact to the first appellate court, but be that as it may, the

impugned judgment of the first appellate court dated 16.3.2015 has to

be set aside, inasmuch as, the first appeal cannot be decided on merits

without first condoning the delay in filing of the first appeal.

5. In view of the above discussion the present appeal is allowed

by setting aside the impugned judgment of the first appellate court

dated 16.3.2015 being RCA No. 16/2014 and the same is remanded

for decision to the first appellate court and the first appellate court

before deciding the appeal on merits shall dispose of the application

for condonation of delay which was filed by the respondent/plaintiff

who had filed the first appeal in the first appellate court. If the first

appellate court allows the application for condonation of delay, the

first appellate court will thereafter dispose of the appeal on merits.

6. The amount deposited by the appellant in this Court will abide

the judgment which will be passed by the first appellate court.

7. Parties to appear before the District and Sessions Judge (North-

West), Rohini Courts, Delhi on 9th September, 2016 and the

RSA 335/2015 page 3 of 4 District and Sessions Judge will decide the appeal itself or mark the

same for disposal to a competent court in accordance with law.

8. This second appeal stands disposed of in the above terms.

                                         VALMIKI J. MEHTA, J
AUGUST 16, 2016
AK




RSA 335/2015                                                page 4 of 4