Delhi High Court
[email protected] vs State & Anr. on 19 September, 2016
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 19, 2016
+ FAO 263/2014
ASHA @ AYESHA ..... Appellant
Through: Mr. Chetan Lokur & Mr. Nitish
Chaudhary, Advocates with
appellant in person
versus
STATE & ANR. ..... Respondent
Through: Mr. B.S. Mann & Ms. Smita
Mann, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGEMENT
% (ORAL)
Impugned order dismisses appellant's application seeking
revocation of grant of Letter of Administration granted vide order of 12 th
July, 2001. Appellant had filed application on 29 th August, 2012 and
while taking the period of limitation from the date of written statement
i.e. 12th May, 2009, appellant's application seeking condonation of delay
stands dismissed by trial court by holding that the medical record relied
upon to seek condonation of delay consists of clinical reports only and it
does not show that appellant had accompanied her daughter-in-law for
medical treatment.
The challenge to the impugned order by learned counsel for
appellant is on the ground that the main stand of appellant of being ill
advised by his previous counsel that there was no period of limitation, is
not dealt with in the impugned order. It is submitted that even if the plea
of illness of appellant's daughter-in-law is not taken into consideration,
still, due to ill advice given to the appellant by previous counsel, the
delay ought to have been condoned, as the delay was neither deliberate
nor intentional. Thus, it is submitted that the impugned order deserves to
be set aside and appellant's application seeking condonation of delay
ought to be allowed and appellant's application seeking revocation of the
Letter of Administration granted vide order of 12th July, 2001 needs to be
heard on merits.
On the contrary, learned counsel for second respondent submits
that the impugned order is perfectly justified and there is no merit in this
appeal, as the name of counsel, who had purportedly given ill advice, is
not disclosed, nor affidavit of the previous counsel has been filed. It is
pointed out that during the period of three years, appellant had filed many
cases against second respondent and so, the plea of appellant being busy
in attending to her ailing daughter-in-law is an afterthought and trial court
has rightly negated it.
It is also pointed out that trial court in the impugned order has
rightly observed that appellant was attending to the litigation at Tis
Hazari Courts and in the office of SDM or before this Court and so, the
medical ground taken by the appellant is of no avail. Reliance is placed
by learned counsel for second respondent upon Supreme Court's decision
in Pundlik Jalam Patil (Dead) by LRs v. Executive Engineer, Jalgaon
Medium Protect and Another, (2008) 17 SCC 448 to submit that a party
taking a false plea cannot get rid of the bar of limitation. Reliance is also
placed upon a decision of Single Bench of this Court in Mahinder Kaur
& Anr. v. Pamela Manmohan Singh & Ors., 2015 V AD (Delhi) 277 to
submit that good faith is sine qua non for availing of the benefit under
Section 14 of the Limitation Act, 1963.
Upon hearing and on perusal of impugned order, the material on
record and the decisions cited, I find that the principal ground taken by
appellant to seek condonation of delay was the ill advice of the previous
counsel. To say the least, impugned order does not deal with the principal
contention raised by appellant's counsel. The averments made in support
of this contention in the application seeking condonation of delay are
contained in paragraph No.4 of the application filed by appellant before
trial court. Paragraph No.4 of the aforesaid application reads as under: -
"4. That with utmost respect it is submitted that the
Petitioner had advised to sate that there is no period of
limitation for the grant of probate. Article 137 of the
Limitation Act does not apply to the application for probate
of letter of administration. Likewise there is no period of
limitation for revocation of the probate. Article 137 of the
Limitation Act does not apply to the application for
revocation of probate."
The corresponding paragraph No.4 of the reply to aforesaid
application reads as under: -
"That the contents of the para 4 of the application are
wrong and are denied. It is denied that there was no
intentional or deliberate delay on the part of the petitioner
for filing the application for revocation of probate or that
there is sufficient cause for condoning the delay."
No doubt, name of the previous counsel is not disclosed, but this
objection was not taken by respondents' counsel in the reply and so, now
respondents' counsel cannot be now heard to say that the name of the
previous counsel is not disclosed or that the affidavit of the previous
counsel is not forthcoming. Otherwise also, judicial notice can be taken
of the fact that in a situation like the one in hand, no counsel would give
affidavit pleading ignorance of law.
It is quite evident that even the respondents' plea of appellant
litigating in various Forums is not supported by any assertion in the reply
to the delay application and so, no notice of it can be taken now. The
delay of 107 days in filing the application does not appear to be
intentional or deliberate. It is not shown as to what prejudice is caused to
the contesting respondents on account of delay occasioned. Reliance
placed upon decisions in Pundlik Jalam (supra) and Mahinder Kaur
(supra) is of no avail because there is no basis to conclude that the plea of
ill advice by previous counsel is false one.
In the facts and circumstances of this case, it is deemed appropriate
to give an opportunity to appellant to contest the application on merits, as
for the delay occasioned, appellant can be put to terms. Consequentially,
impugned order is set aside and appellant's application seeking
condonation of delay of 107 days is allowed subject to costs of `10,000/-
to be paid to respondent No.2 within four weeks. Upon payment of costs
to second respondent within the stipulated time, appellant's application
seeking revocation of grant of Letter of Administration be expeditiously
decided by trial court in accordance with the law.
With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 19, 2016
r/s
