Yogendra Kumar vs Sansar Singh (Deceased) Thr Lrs & ...
2016 Latest Caselaw 442 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                                  EX.F.A. 3/2016
                                           Decided on: 20th January, 2016
       YOGENDRA KUMAR                                      ..... Appellant
                  Through:               Mr. Amarjit Singh, Advocate

                          versus

    SANSAR SINGH (DECEASED) THR LRS & ANR.. Respondents
                  Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

CM APPL.2093/2016 (exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of.

EX.F.A. 3/2016 & CM APPL.2092/2016 (stay) & 2094/2016 (delay)

1. The appellant has filed an application being CM APPL.2094/2016

under Section 5 of the Limitation Act, 1963 seeking condonation of

1245 days delay in filing the present execution appeal.

2. Briefly stated that fact of the case are that Sansar Singh (since

deceased) filed a suit for specific performance against one Bachan

Singh in respect of a plot of land measuring 600 sq. yds., situated

in Khasra No.22/23, village Ranhola, Delhi. During the pendency

of the suit an application under Order 1 Rule 10 read with Order 6

Rule 17 of the Code of Civil Procedure, 1908 (CPC) was filed by

the deceased/plaintiff for impleading three more parties as

defendants. These were, Mandeep Singh, Radhey Shyam and Vijay

Kumar. The said application was allowed and the three applicants

were impleaded as defendants No.2 to 4 in the suit. The suit was

ultimately decreed.

3. The present appellant is an objector who had filed objections

claiming himself to be bona fide purchaser of the suit property

which he claims to have purchased from one Sanjeev Kumar

Gahlot on 04.08.2008. These objections were also dismissed by the

executing Court vide order dated 30.07.2012. It is against this

order that the present execution appeal has been filed.

4. Along with the appeal an application under Section 5 of the

Limitation Act, 1963 has been filed wherein it has been averred

that the appellant after suffering the adverse judgment on

30.07.2012 applied for certified copy of the judgment on

19.09.2012 which was made available to him on 28.09.2012. It has

been stated by the learned counsel for the appellant since the

certified copy of the judgment was delivered on 28.09.2012 this

clearly shows that the appellant intended to file an appeal,

however, he has stated that the appellant's mother who was living

in the village was taken seriously ill because of which she was

brought to Delhi in the month of May, 2012 and she continued to

be on treatment including oxygen therapy till February, 2015 when

she unfortunately expired. It has been stated that during this period

between the date of rejection of the objections of the appellant and

the death of mother of the appellant, he was completely tied down

at his home and attending to his ailing mother which included

administering oxygen to her. Because of these reasons, it has been

stated that the appellant who was an Income Tax practicing

advocate, he could not take steps timely for the purpose of filing

the appeal. It has been stated that no serious prejudice will be

caused to the respondents as the execution application of the other

three impleaded parties has already been allowed and they have

been permitted to file their evidence by way of Affidavit by the

Executing Court. It is accordingly contended that apart from the

aforesaid reasons which in the eyes of the appellant constitute

sufficient cause, no serious prejudice would be caused to the

respondents in case the application of the appellant is heard on its

merits thereby permitting the appellant to join the execution

proceedings for the purpose of proving his evidence.

5. I have carefully considered the submission made by the learned

counsel for the appellant and have gone through the record.

6. The law regarding condonation of delay is well settled. It has been

laid down repeatedly by the Apex Court that while condoning the

delay in filing the appeal of application, the Court must take a

pragmatic and lenient view rather than strict one. It has also been

stated that the length of delay is not important for the Court but

what is important is the bona fides of the appellant seeking

condonation of delay.

7. Considering both these parameters in the instant case, the

application of the appellant seeking condonation of delay is totally

misconceived on account of the fact that except giving the vague

excuses that he was busy in attending to his ailing mother, no

plausible explanation has been furnished by the appellant as to why

he could not file the appeal timely. This is despite the fact that the

appellant himself has admitted that he is a practicing lawyer and

therefore, this was all the more necessary for him to act with due

despatch and seriousness and take steps for filing the appeal within

time. It seems that the appellant being a practicing advocate he

took it for granted that whatever is the delay which has taken place

in filing the execution appeal, still he will be able to manage the

affairs and get the delay condoned. This kind of attitude on the part

of the appellant or his counsel is bereft of any legal sanctity.

8. In my considered view, the explanation which has been furnished

by the appellant or the reasons which are given by him do not

constitute 'sufficient cause' within the meaning of law as this is not

a delay which cannot be said to be beyond the control of the

appellant and there is a considerable delay in filing the appeal and

in case the application for delay is allowed, it will only keep the

matter alive unnecessarily and a non serious player will be come

into play.

9. In view of the aforesaid reasons, I am of the considered opinion

that as the appellant has not been able to show to the Court that he

was prevented by any sufficient cause from assailing the impugned

order, I, therefore, dismissed the appeal as barred by time.

10. Pending applications also stand disposed of.

11. Let the file be consigned to record room.

V.K. SHALI, J.

JANUARY 20, 2016 vk