Delhi High Court
Shri Kishore Kumar And Ors. vs Smt. Sheela Devi And Ors. on 3 October, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.143/2016
% 3rd October, 2016
SHRI KISHORE KUMAR AND ORS. ..... Appellants
Through: Mr. Ashish Dhingra, Advocate with Mr.
Rahul Rajan, Advocate.
versus
SMT. SHEELA DEVI AND ORS. ..... Respondents
Through: Mr. Sumesh Gandhi, Advocate for
respondent nos.2 to 10.
Mr. S.K. Jha, Record Keeper for
respondent no.13 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the
Judgment of the First Appellate Court dated 28.3.2016 by which the first
appellate court has dismissed the appeal as barred by time by refusing to
condone the delay of 108 days in filing of the first appeal.
2. The reasons given for seeking condonation of delay are stated in
para 4 of the Judgment of the First Appellate Court dated 28.3.2016 and which
para 4 reads as under:-
"4. The appellant in the application under consideration has contended
that the impugned decree and judgment is of date 24.07.2015, whose certified
copies were applied on 11.08.2015, which were prepared on 18.08.2015. In terms
thereof the appellants/plaintiffs had the time till 30.08.2015 to file the
present appeal. Present appeal was filed on 10.02.2016. It is the
averment of the appellant/applicant that on 18.09.2015, father of the
Counsel for appellants/plaintiffs met with an accident and got severely
injured; thereafter the Counsel for appellants/plaintiffs on 19.09.2015 had to
rush to his home town in Patna as there was none to look after his father where
two months time was taken for recovery of father of Counsel for
appellants/plaintiffs. It is also averred that on returning from home town,
Counsel for appellants/ plaintiffs had to shift his residence in last week of
November 2015 as well as the office renovation was under process due to which
the files kept in the office of Counsel for appellants/plaintiffs were
shifted to newly constructed office-cum-residence of Counsel for appellants/
plaintiffs and during shifting, the file of the present matter was misplaced by the
staff of Counsel for appellants/plaintiffs. Also has been laid that in second week
of January, the file of present matter was located by Counsel for
appellants/plaintiffs after which the Counsel for appellants/plaintiffs
applied for certain relevant material documents from concerned
departments and thereafter on receipt of documents, the present appeal was filed.
In the application under consideration, it has been prayed that delay of 108 days
in filing appeal be condoned. In fact, there is delay of 163 days in filing appeal in
view of above elicited facts, since appeal was filed on 10.02.2016. Ld. Counsel
for appellant/applicant has relied upon the case of Manoharan Vs. Sivarajan &
Ors., Civil Appeal No. 10581 of 2013, decided by Supreme Court of India, on
25.11.2013, submitting that the 'sufficient cause' should be considered
with pragmatism injustice oriented process approach rather than the technical
detention of sufficient cause for explaining every day's delay. The factors which
are peculiar to and characteristic of the functioning of pragmatic approach in
justice-oriented process. The Court should decide the matters on merits unless
the case is hopelessly without merit."
3. I may note that delay is not a large delay running into years and
years, and it is settled law that valuable rights of parties are decided by a
judgment on merits and not by considering the issue of limitation very strongly.
In fact, the Supreme Court in the judgment in the case of N. Balakrishnan Vs.
M. Krishnamurthy AIR 1998 SC 3222 has held that it should not be presumed
that a person is interested in delay in filing a petition or an appeal unless illegal
advantage can be derived therefrom. The Supreme Court has held that unless
there is gross negligence or malafide delay, delay should ordinarily be
condoned. Accordingly, by applying the ratio of the judgment of the Supreme
Court in the case of N. Balakrishnan (supra) the delay is liable to be condoned.
Also, the reasons given for filing of appeal with delay is lack of application by
the counsel and therefore parties must not suffer for the inaction of the counsel
as held by the Supreme Court in the judgment in the case of Rafiq and Anr. Vs.
Munshilal and Anr. (1981) 2 SCC 788.
4. Learned counsel for respondent nos.2 to 10 places reliance upon a
Single Bench judgment of this Court in the case of Suresh Kumar Vs. State and
Others 1981 Crl. L. J. 928 to argue that a counsel must file an affidavit in
support of the application with respect to the facts in his knowledge and there
was no affidavit of the counsel for the appellants in the first appellate court and
therefore the delay cannot be condoned. However, I cannot agree with the
argument urged on behalf of the respondent nos.2 to 10 because surely the
appellants who are interested persons and are aware of facts of lack of
application by their counsel could well have filed an affidavit in support of the
application for condonation of delay.
5. In view of the above, this second appeal is allowed, however, the
same is allowed subject to payment of costs of Rs.5,000/- to the counsel for
respondent nos.2 to 10 for condoning the delay in filing the first appeal. Let
parties appear before the District & Sessions Judge, Central, Tis Hazari Courts,
Delhi on 3rd November, 2016 and the District & Sessions Judge will mark the
first appeal for disposal to a competent court in accordance with law. Costs be
paid by the appellants on the first date of hearing before the competent court to
whom the first appeal is marked for hearing.
OCTOBER 03, 2016 VALMIKI J. MEHTA, J
Ne
