Delhi Waqf Board vs Smt. Shakuntla Devi & Ors.
2016 Latest Caselaw 1835 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                         RFA 155/1983
                                              Decided on: 8th March, 2016

       DELHI WAQF BOARD                                     ..... Appellant
                          Through:      Mr. Wajeeh Shafiq, Adv.


                          versus
       SMT. SHAKUNTLA DEVI & ORS.                    ..... Respondents
                          Through:      Nemo.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM APPL.8375/2016 (restoration), CM APPL.8376/2016 (delay), CM APPL.8377/2016 (stay)

1. These are three applications filed by the appellant. First application is for restoration of the appeal, second is seeking condonation of delay of 4386 days delay and the third application is for stay with regard to the maintenance of the status quo of the property bearing Municipal No.5544 to 5546, Masjid Shora Kothi, Paharganj, New Delhi during the pendency of the appeal.

2. Briefly stated the facts of the case are that the appellant/plaintiff had filed a suit for possession in respect of the property bearing Municipal No.5544 to 5546, Masjid Shora Kothi, Paharganj, New Delhi on the allegations that the appellant is a Wakf Board and the property in question belong to the Wakq. It was further alleged

that the aforesaid property had been unauthorizedly occupied by the respondents/defendants without any right to remain in possession and therefore a decree of possession be passed in its favour. The respondents who were seven in number filed their written statement and contested the claim. On the pleadings of the parties, following issues were framed:-

"(i) Whether the suit has been filed and the plaint has been signed and verified by a duly authorized person? OPP.

(ii) Whether the plaintiff is the owner of the property in suit?

(iii) Whether the suit of the plaintiff is barred by res judicata? OPD.

(iv) Whether the defendants have become the owner of the property in dispute by adverse possession?

(v) Relief."

3. Both the parties adduced their respective evidence and the learned District Judge, Delhi vide order dated 16.02.1983 dismissed the suit for possession as it was held that the defendants had become owners of the property by an adverse possession.

4. Feeling aggrieved the appellant filed the present appeal which was listed for the first time before the Division Bench of this Court on 13.07.1983. On the same day, the matter was admitted and it was ordered that cyclostyle paper book be filed by the appellant so that the mater could he heard. The service of the respondents was directed to be effected and for that purpose the matter was listed

before the Deputy Registrar. On 18.10.1984, the service of all the respondents is shown to have been effected. The matter came up before the Court for regular hearing on 19.02.2004 and since there was no appearance on behalf of the appellant, the appeal was dismissed.

5. It is after almost more than 12 years that the Wakf Board through its Advocate Mr. Wajeeh Shafiq has filed the application for restoration of the appeal. The ground for not appearing on 19.02.2004 by the appellant has been given that its Advocate Shri Mohd. Ahmed had appeared at the time of admission, however, he had expired on 21.12.2000 and the appellant did not know about the listing of the matter in the year 2004 and consequently, the same was dismissed. It has been stated that the appellant learnt about the dismissal of the appeal on 15.02.2016 and immediately the matter was processed and the application for restoration and recall of the order has been filed.

6. It has been stated that for the aforesaid reason of the death of the erstwhile counsel, the appellant had completely lost the track of the appeal because of which there has been a delay of nearly 4386 days. It has been stated that the delay on the part of the appellant was not intentional and deliberate and therefore, the delay may be condoned and the appeal be restored to its original number.

7. I have considered the submissions. I have also gone through the record.

8. There is no dispute about the fact that the appeal had been dismissed for non prosecution on 19.02.2004 while as the counsel for the appellant had died almost four years prior to that. Merely because the appellant is a body corporate or a society that does not absolves it from the duty of following up the case with the counsel. It is very strange that after engaging the counsel for the purpose of filing an appeal, the principals, officers or the Secretary of the body corporate never cared to check up with the counsel about the development of the case. It was not as if after the appeal had been filed that the appellant body was absolved of following it up with the counsel completely. They should have been vigilant enough to check up from the counsel about the status of the case from time to time at least if not quarterly at once in a six months. On the contrary, it seems that once the appeal was admitted in 1983 they went into long slumber and became dependent upon the counsel's wisdom to follow it up. No averment has been made as to how the appellants were managing their legal cases including the present one and how they take up the matter with their counsel. It is also very strange that the appeal having been dismissed in 2004, the appellant did not care to check during all these 12 years as to what is the status of their case either by inspecting the record or by asking the counsel. On the contrary, simply by stating that when they learnt about the dismissal of the appeal in 2004 and they moved an application for restoration expeditiously is no ground to restore the appeal when for almost 12 years without any rhyme or

reason they have literally remained grossly negligent in following up their matter.

9. The law regarding the condonation of delay is very well settled.

The Supreme Court in number of cases has categorically laid down that the law regarding condonation of delay is liberally construed and while condoning the delay what is to be seen is bonafides of the party seeking condonation of delay. In this context, reliance can be placed on Basawaraj & Ors. v. The Special Land Acquisition Officer, AIR 2014 SC 746, wherein it was held that the applicant must satisfy the Court that he was prevented by any 'sufficient cause' from prosecuting his case and unless a satisfactory explanation is furnished the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose.

10. Similar, in Parimal v. Veena @ Bharti, AIR 2011 SC 1150, it was observed that 'sufficient cause' means that party had not acted negligent manner or there was a want of bona fide on the part cannot be alleged to have been not acting diligently or 'remaining inactive'.

11. In the present case the bonafides of the appellant are doubtful in as much as they were not prosecuting the matter in good faith with due care and attention and therefore, if in this case delay of almost 12 years which comes to 4386 approximately is condoned, it will be only putting premium on gross negligence on the part of the

appellant. Therefore, I am not inclined to condone the delay as no sufficient cause has been shown.

12. Since the delay itself is not condoned as sufficient cause for non appearance has also not been shown for the date when the matter was dismissed for non prosecution, i.e. on 19.02.2004, therefore, both the applications are dismissed.

13. Since both the applications for delay as well as restoration are dismissed, the application for stay also deserves to be dismissed.

14. Ordered accordingly.

15. File be consigned to record room.

V.K. SHALI, J.

MARCH 08, 2016 vk