Gurmit Kaur & Ors. vs Harmeet Singh & Ors.
2017 Latest Caselaw 2279 Del

$~10

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      FAO 124/2008

GURMIT KAUR & ORS.                                 ..... Appellants

                         Through:     Mr. Chittaranjan, Advocate with
                                      Mr. C.M. Jayakumar, Advocate.



                         versus



HARMEET SINGH & ORS.                               ..... Respondents

                         Through:     Mr. K.C. Mains, Advocate.



CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

                   ORDER

% 08.05.2017

C.M. Nos.6659/2015 (restoration) 6660/2015 (for condonation of delay in filing the application), and 6661/2015 (for condonation of delay in re-filing the application) by appellant no.1

1. By these applications, the appellant no.1 seeks restoration

of the first appeal which was dismissed for non-prosecution vide order

dated 22.9.2010. The application for restoration alongwith connected

applications for condonation of delay have been filed on 9.2.2015.

There is therefore delay of around four and half years in filing of the present applications. In the application for condonation of delay it is

stated that delay is of 801 days, however, that is not correct and the

delay is of approximately four and half years.

2. The only reason given in the applications for restoration

of the appal and condonation of delay is that the counsel did not expect

the appeal to come up for hearing within six months of admission of

the same as the appeal was admitted for regular hearing vide order

dated 19.2.2010. In the application for condonation of delay, it is also

pleaded that counsel for the appellant had to regularly go to Kerala to

look after his ailing father-in-law and therefore he missed the listing of

the case. It is stated that counsel's father-in-law expired on 19.1.2015.

3. In my opinion though the present case is a hard case, I

cannot allow the applications for restoration and condonation of delay

because no doubt, Courts do look at the issue of restoration and

condonation of delay liberally, however, the delay in this case is a far

too large delay of about four and half years to be condoned routinely.

No doubt, it is correct that counsel may not have expected the matter to

come up within six months in the regular board but there is no reason

why after six months another period of four years approximately was

taken for filing of the application for restoration. It is the duty of the

counsel to at least infrequently a few times a year check up the issue of listing of a case for hearing. The matter before being dismissed for

non-prosecution vide order dated 22.9.2010 had earlier come up on

21.9.2010 and 31.8.2010 and on both of which dates no one had

appeared for the appellant.

4. I may also note that appellant no.1 is not an illiterate

person and he also is guilty of gross negligence because status of every

case is available 24X7 and 365 days on the website of this Court.

5. Condonation of delay is not a matter of right because

vested rights accrue in favour of the other side. In the present case

such vested rights have accrued because the respondents in their reply

to these applications have stated that respondents after dismissal of the

case in default have obtained the letters of administration after paying

court fee. It is also pleaded that on the basis of letters of administration

mutation has been got done of the bequeathed property bearing no.A-

339, Kalkaji, New Delhi. It is also pleaded that respondents/non-

applicants have incurred an expenditure of around Rs.4 lacs thereafter

for renovation and restoration of the property which is built up on

approximately 32 sq yds.

6. In order to appreciate complete lack of essential averments

for seeking restoration and condonation of delay, I am reproducing herein all the paras of the applications seeking restoration and

condonation of delay and these paras read as under:-

"Paras of application for restoration

1. That, by the present Miscellaneous Petition, the appellant seeks restoration of FAO 124/2008 which has been dismissed, in default for non-prosecution vide order dated 22.09.2010. A copy of the order dated 22.09.2010 is annexed hereto as Annexure M-1.

2. That the non-appearance of Petitioner or her Counsel, as a result of which the appeal was dismissed for default, was entirely unintentional and not owing to any negligence on the part of either of them. However, the appellant tenders sincere and unconditional apology for not being thus represented and undertakes that no such default would occur in future.

3. That, vide order dated 10.02.10, the present FAO was admitted, with the direction that it be listed in due course. A copy of the order, passed by this Hon'ble Court on 10.02.10 is annexed hereto as Annexure M-2.

4. That, in due compliance with the abovementioned order dated 19.02.10, the present appeal ought to have been listed on regular matters in its turn. However, for reasons unknown to the appellant, the appeal was suddenly listed on 31.08.10, apparently as a miscellaneous matter. As a result, the appellant who never expected the appeal to be listed 6 months after it had been admitted, was not present in Court. On the said date i.e. 31.08.2010, this Hon'ble Court directed that the matter be listed as a regular matter on 20.09.2010. A copy of order dated 31.08.2010, passed by this Hon'ble Court is annexed hereto as ANNEXURE-M-3.

5. That, thereafter, the matter was listed on 20.09.2010, 21.09.2010 and 22.09.10. As on these dates the matter was listed consequent to the direction issued on 31.08.10, the appellant was not represented on the said dates either. That, consequently, vide order dated 22.09.10, this Hon'ble Court dismissed the present FAO 124/2008 for default of non- prosecution. A copy of the order dated 21.09.10 is annexed hereto as Annexure M-4.

6. That, as the non-appearance of the appellant or her Counsel, was owning essentially to the sudden listing of the present FAO on 31.08.10 just over 6 months from the date it was admitted and directed to be listed in due course. It is respectfully submitted that the said absence cannot be said to be wilful, deliberate or owing to any negligence on the part of either the appellant or her Counsel.

7. That, therefore, though this Hon'ble Court has unquestioningly been inconvenienced owing to the said non- representation of the appellant when the appeal was listed on the said dates for which the appellant is sincerely apologetic and regretful, it is respectfully submitted that interests of justice would require that the appeal is restored and heard on any date convenient to this Hon'ble Court.

PRAYER

In view of the abovementioned facts and circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to:

(i) to restore the present appeal (FAO 124/2008) to its original number and hear and decide the same, and

(ii) to pass such other order or orders as may be deemed fit and proper in the interest of justice.

Paras of the application for condonation of delay

1. That by the present Miscellaneous Application, the appellant is seeking condonation of delay in filing the Application for restoration of petition bearing no.FAO 124 of 2008 which has been dismissed by this Hon'ble Court on the ground non- prosecution vide order dated 22.09.2010.

2. That in the Civil Miscellaneous petition preferred by the appellant for restoration of the appeal, the appellant has narrated the circumstances and the reasons for which the appellant was not able to represent before this Hon'ble Court on the date of dismissal. The appellant would, at the cost of repetition, once again reiterate the said reasons as the same reason would be applicable in the present application seeking condonation of delay:

(i) Vide order dated 19.02.2010, the FAO was admitted, with the direction that it be listed in due course.

(ii) The appeal, therefore, ought to have been listed in the category of regular matter in its turn.

(iii) On 31.08.2010, the matter appeared on the Board as a miscellaneous matter, suddenly got listed as a miscellaneous matter. The appellant never expected the appeal to be listed within 6 months after the date of its admission. The appellant, therefore, was not present before the Court on the said date. On the said date, the Hon'ble Court directed that the matter be listed as a regular matter on 20.09.2010.

(iv) The matter was, thereafter, listed on 20.09.2010, 21.09.2010 and 22.09.2010. As on these dates mentioned hereinabove the matter was listed consequent to the direction issued by this Hon'ble Court on 31.08.2010, the appellant was totally unaware of the said dates and, unfortunately, was not able to represent before this Hon'ble Court on the said dates.

3. That the reasons stated hereinabove clearly indicate that the non-representation before this Hon'ble Court on the dates indicated hereinabove was only due to the fact that neither the appellant nor her counsel noticed the matter on the said dates in the cause list which resulted in dismissal of the appeal.

4. That on being aware of the dismissal of the appeal, by this Hon'ble Court, the appellant contacted the Counsel and application for restoration was moved thereafter.

5. That the delay, therefore, in filing the application for restoration of the appeal is bonafide and not intentional, therefore, deserves to be condoned.

PRAYER

In view of the abovementioned facts and circumstances, it is respectfully prayed that this Hon'ble Court may be pleased:

(i) to condone the 801 days delay in filing the application for restoration of the appeal bearing No.FAO 124 of 2008, and

(ii) to pass such other order or orders as may be deemed fit and proper in the interests of justice."

7. In view of the fact that though every day of delay does not have to be legitimately explained, however, complete and gross negligence cannot be sought to be got condoned from the Courts, more so in view of the facts of the present case where respondents have acted in furtherance of the grant of letters of administration, these applications are therefore dismissed.

C.M. No.48289/2016 (for restoration), 48290/2016 (for condonation of delay in filing) & 48291/2016 (for condonation of delay in re- filing) by appellant no.2

8. For the reasons as already recorded above and considering

that these applications are in fact further delayed than the aforesaid

applications, the same are also dismissed.

VALMIKI J. MEHTA, J

MAY 08, 2017 Ne