Delhi Development Authority vs Ramesh Chand & Ors
2016 Latest Caselaw 3198 Del

*                     HIGH COURT OF DELHI AT NEW DELHI

+                                  R.S.A. No.205/2011

                                                 Pronounced on: 3rd May, 2016

        DELHI DEVELOPMENT AUTHORITY                               ..... Appellant
                        Through:      Mr. Rajiv Bansal, Advocate with
                                      Mr. Siddhant Gupta &
                                      Ms. Ritu Gautam, Advocate
                             versus


        RAMESH CHAND & ORS                                  ..... Respondents
                        Through:      Mr. R. Sudhinder, Advocate with
                                      Mr. R. Gopalakrishnan, Advocate for
                                      R-1, 4, 5 (a), (c), (d).
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a regular second appeal filed by the appellant against the

judgment dated 07.07.2011 passed by Mr. S.S. Malhotra,

Additional District Judge, Karkardooma Courts, Delhi by virtue of

which the application under Section 5 of the Limitation Act

seeking condonation of six months delay in filing the appeal has

been dismissed.

2. I have heard Mr. Rajiv Bansal, the learned counsel for the appellant

and Mr. R. Sudhinder, Advocate on behalf of the respondent.

3. Before dealing with the respective submissions made by the

learned counsel for the parties, it would be pertinent here to give

brief background of the case.

4. The respondent/plaintiff filed a suit for permanent injunction

claiming himself to be in possession of a land bearing Khasra

No.367 min., measuring 3 bighas 4 biswas, situated in the revenue

estate of village Kondli, illaqa Shahdara, Tehsil Preet Vihar, Delhi.

It was alleged by the respondent/plaintiff that the

appellant/defendant DDA has no right, title or interest in respect of

the aforesaid land as it has not been acquired for the planned

development of Delhi. It was alleged that no show cause notice to

the respondent/plaintiff was issued by the appellant/defendant and

its officials and they were trying to illegally take the possession of

the land in question. It was alleged that on 09.07.1999 at about

11:00 a.m. some officials of the appellant/defendant had visited the

site to dispossess the respondent/plaintiff, which gave rise to the

cause of action to file a suit for injunction and accordingly the

injunction was prayed for. Along with the main suit an application

seeking ad interim relief was also prayed for.

5. The appellant/defendant filed its written statement and contested

the matter. The stand of the appellant/defendant was that the suit

land has been acquired by the DDA through different awards

passed under Land Acquisition Act and Respondent/ plaintiff were

not in possession. The respondent/plaintiff filed an application

under Order 6 Rule 17 read with Section 151 CPC seeking

amendment of the suit so as to add the relief of declaration and

possession also in respect of the suit land. The said prayer for

amendment was allowed and the suit was converted from a

simplicitor injunction suit to a suit for declaration, possession and

mandatory injunction.

6. On the basis of the pleadings of the parties, following seven issues

were framed:-

"(i) Whether the suit is not maintainable for want of statutory notice u/s. 53B of DD Act? OPD.

(ii) Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD.

(iii) Whether the plaintiffs have no right, title or interest over the suit land? OPD.

(iv) Whether the plaintiff is entitled for the decree of possession as prayed for? OPP.

(v) Whether the plaintiff is entitled for the decree of declaration as prayed for? OPP.

(vi) Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP.

(vii) Relief."

7. The respondent/plaintiff in support of his case examined five

witnesses. On the other hand, the appellant/defendant examined

one witness.

8. The learned trial Court after analysis of the evidence partly decreed

the suit in favour of the respondent/plaintiff declaring the

respondent/plaintiff to be the lawful owner of suit land. However,

no order with regard to injunction or possession was passed or

declaration was issued.

9. Feeling aggrieved, the appellant/defendant preferred an appeal

against the judgment and decree dated 02.02.2010. Along with the

appeal an application seeking condonation of delay of six months

was also filed. It was stated in the application that the

appellant/defendant being a government organization, the matter

had to be examined in various departments and before filing an

appeal, opinion from the Chief Legal Advisor (CLA) was obtained

and approval is sought for the purpose of filing an appeal. It was

stated that there was no intentional or deliberate delay on the part

of the appellant/defendant and it was on account of genuine and

bona fide reasons of processing the file through different

departments of the appellant that the delay had occurred. It was

also stated that the appeal was filed after summer break when the

Courts reopened. An Affidavit of S.N.Gupta, Land Management

(I) in support of the application was also filed.

10. It may also be pertinent here to mention that it was stated that the

appeal was filed after reopening of the Court in July.

11. The respondent/plaintiff contested the application seeking

condonation of delay by alleging that the reasons which were given

by the appellant/defendant in the application seeking condonation

of delay did not constitute „sufficient cause‟ as details of

processing the file were not given. It was also stated that the

appellant in its Affidavit of seeking condonation of delay had made

a false averments in as much as in the Affidavit it has been stated

that the appeal has been filed after reopening of the Court in July

while as the appeal has been filed in the month of September, 2010.

12. The learned first Appellate Court considered the submissions made

by the respective sides and has taken a view that the

appellant/defendant have made an incorrect statement by stating

that the appeal had been filed immediately after reopening of the

Court while as it was actually filed in the month of September,

2010. On merits also, he did not agreed that sufficient cause was

shown by the appellant in proof of condonation of delay and

according, the application itself was rejected.

13. The appellant/defendant feeling aggrieved by the aforesaid

rejection of the appeal on technical ground of non condonation of

delay have preferred the present second appeal.

14. Mr. Rajiv Bansal, the learned counsel for the appellant/defendant

has vehemently contested the approach of the learned trial Court,

the first Appellate Court by contending that the appellant/defendant

never stated in the Affidavit that the appeal was filed immediately

on the opening day after the summer break. It has been stated that

the learned first Appellate Court has erroneously construed the

statement of the appellant that it has been filed on the reopening of

the Court as if the appeal was filed on the re-opening "day" while

as the appellant has purposely not used the word "day" after

reopening and therefore there was absolutely misreading of this

line of the Affidavit of the deponent Mr.S.N.Gupta, Land Manager

(I) by the learned trial Court.

15. It has been contended that even on merits the appellant/defendant

have a good case in as much as the learned trial Court has not

considered the evidence and erroneously have issued a declaration

in favour of the respondent/plaintiff. The land in question is

acquired land and belongs to the DDA and the first appeal being

the matter of right, the learned first Appellate Court ought to have

considered the appeal on merits rather than ousting the

appellant/defendant on a technicality.

16. The learned counsel for the respondent/plaintiff has vehemently

contested the submission made by the learned counsel for the

appellant/defendant. It has been contended that the learned first

Appellate Court was right in its observation that the appellant tried

to mislead the court by stating that the appeal has been filed after

the vacations on reopening while as it was filed in the month of

September, 2010. It has been further contended that the rejection

of the appeal on the ground of limitation does not raise any

substantial question of law which is a pre-requisite before the

second appeal is entertained by the Court.

17. I have carefully considered the submissions made by the counsel

for the parties. I have also gone through the record.

18. The law regarding limitation has gone sea change from the first

judgment laid down by the Apex Court in Ramlal, Motilal And

Chhotelal vs Rewa Coalfields Ltd, 1962 SCR (3) 762 case to till

date.

19. Ramlal, Motilal And Chhotelal vs Rewa Coalfields Ltd (supra) the

interpretation of the words „sufficient cause‟ given by the Apex

Court was that the appellant or the applicant, who seeks

condonation of delay must not only show as to why he did not file

the appeal or the application as the case may be on the last date of

the limitation but also has to keep on explaining each day's delay

in filing the same. This strict adherence of explaining each day's

delay has been completely done away with the passage of time by

the Apex Court. The broad parameters with regard to proof of

„sufficient cause‟ seeking condonation of delay can be summed up

as the following points has have been enunciated in different

judgments of the Apex Court in different words:-

(i) While condoning the delay under Section 5 of the Limitation

Act it is not the length of delay what is important but it is the

bona fides of a party.

(ii) That while explaining the delay, each day's delay is no more

required to be explained by a party but what is to be

explained is as to what is the reason in substance which

caused the delay in filing the appeal.

(iii) Though the law of limitation which is applicable to the

government bodies is the same which is applicable to the

private individuals. But still on account of impersonal body

of the government some leeway has to be given to the

government or government bodies in taking a decision.

(iv) That while explaining the delay the broad reasons which has

resulted in passing of the delay must be explained and the

litigant should not be indolent and grossly negligent in

prosecuting the remedy.

(v) The Court must construe the provision of „sufficient cause‟

liberally and in a pragmatic manner rather than ousting a

party on technicality.

(vi) Last but not the least, it has been observed in number of

cases that while condoning the delay the court must cursorily

have a look at the merits of the matter also so as to see as to

what is the worth of the case of the appellant/applicant.

20. Reliance in this regard can be placed on Esha Bhattacharjee vs.

Managing Committee of Raghunathpur Nafar Academy and Ors,

;(2013)12SCC649, Basawaraj & Ors. vs The Special Land

accquisition officers; AIR 2014SC746, Parimal vs [email protected] Bharti;

AIR 2011SC1150.

21. Coming back to the facts of the present case, the quantum of delay

which has taken place in the instant case is not very large. The

appeal from the order of the learned District Judge is to be filed in

the High Court within ninety days while as the appeal has been

filed after about 180 days and the reason which has been given by

the appellant/DDA is that a decision had to be taken in the various

departments of the DDA. The matter was to be examined in the

various departments of the DDA before a decision could be taken

with regard to filing of the appeal which was ultimately taken by

the Chief Legal Advisor in April, 2010 the moment the decision

was taken, instructions were given to file the appeal. It has also

been stated that the delay which had taken place was on account of

the bona fide reasons and was not done with a deliberate intent.

Accordingly, it has been prayed that the delay may be condoned.

22. The aforesaid facts clearly show that the delay which was involved

in the instant matter was not so great that the Court ought to have

rejected the plea of condonation of delay when an explanation was

given. The court ought to have realized that the government is an

impersonal body and there is not dearth of people in such

governmental bodies who are out right to help the private litigants

and for this purpose they process the files at a snail pace only with

a view to ensure the merits of the matter are not dealt with. Such a

practice deserves to be curbed and meted out with a heave hands.

By not condoning the delay in such kind of cases we are only

giving impetus to such officials that the delay will not be condoned

and the order which has been obtained by the respondent/plaintiff

though it may not be sustainable on merits but because of the

application seeking condonation of delay having been rejected the

seal of the legality is put on the same. Because of these reasons, I

feel the delay of six months in preferring the appeal in the instant

case ought to have been condoned by the learned ADJ.

23. So far as the condonation of delay is concerned, the merits of the

matter are also cursorily to be borne in mind. The first appellate

Court ought to have taken note of the fact that the first appeal is a

matter of right and therefore, there should have been at least first

check with regard to merits of the matter in the instant case. By

rejecting the application seeking condonation of delay, there is no

occasion for the first appellate court to consider the merits of the

main matter itself and literally the land in question which is being

claimed by the appellant to the government land is permitted to

become a private land by the respondent/plaintiff.

24. There is another aspect of the matter. This is that the

respondent/plaintiff firstly filed a suit for injunction knowing and

fully aware that in case a suit for injunction is filed no statutory

notice is required to be served on a party. After having obtained an

injunction an application under Order 6 Rule 17 CPC is filed by the

respondent/plaintiff wherein he claims the declaration as well as

possession in respect of the suit land. No suit for declaration could

be filed against the DDA unless and until a statutory notice under

Section 53-B of the DDA Act is given. In the suit for injunction the

respondent/plaintiff had specifically stated that he is in possession

of the suit property. If that be so then what was the necessity for

the respondent/plaintiff to have claimed possession. All these facts

clearly show that the respondent/plaintiff wanted to circumvent the

law and get a decree of ownership only on technicality.

25. The appellant/defendant had taken a specific objection that the land

stands acquired and therefore, no right, title or interest vested in the

respondent/plaintiff to either get injunction or to get a declaration.

This had been brushed aside and not considered by the court and

accordingly, the application seeking condonation of delay has been

rejected.

26. Another important aspect of the matter is that the first appellate

Court has got swayed by the words in the application seeking

condonation of delay so as to observe as if the appellant/defendant

was misleading the court. It was observed by the Court that the

appellant had tried to mislead as if the appeal was filed

immediately on the reopening day.

27. I have considered this aspect of the matter also but I feel that there

was no occasion much less the intention on the part of the appellant

to mislead the Court. The appellant has nowhere in the Affidavit

stated that the application seeking condonation of delay has been

filed on reopening "day". The word "day" has not being used in

the Affidavit at all. No doubt the Affidavit in this regard is not

happily worded but the intention of the appellant seems to be to

apprise the Court that the appeal was filed after reopening of the

Court rather than on the reopening day, which resulted in delay in

filing the appeal itself.

28. The contention of the learned counsel for the respondent that this

issue of rejection of the application seeking condonation of delay

under Section 5 of the Limitation Act does not constitute a

substantial question of law so as to warrant an interference by this

Court does not, in my view carry any weight. The reason for this is

an erroneous interpretation of Affidavit or a provision of law would

certainly be a substantial question of law which needs adjudication

by the learned Judge.

29. For the reasons mentioned above, I am of the considered opinion

that the Appellate Court erroneously rejected the contention on

delay application. The very fact that there was an erroneous

rejection of the application by the first appellate Court itself is a

substantial question of law.

30. I, therefore, feel that the contention of the learned counsel for the

respondent/plaintiff that there is no substantial question of law

involved in the matter is without any merit.

31. For the reasons mentioned above, I feel that the first appellate

Court ought to have condoned the delay as sufficient cause has

been shown by the appellant/DDA and it ought to have dealt with

the matter on merits.

32. Accordingly, the appeal of the appellant is accepted. Delay of six

months in filing the appeal is condoned.

33. The appeal is allowed with the direction to the parties to appear

before the learned District & Sessions Judge, East District,

Karkardooma Courts, Delhi on 16.05.2016 who shall allocate the

appeal to the successor court or such other court as he deems fit

for the purpose of disposal of the appeal on merits.

V.K. SHALI, J.

MAY 03, 2016 vk