Delhi High Court
Narender Kumar Gupta vs Anita Gupta & Ors on 29 August, 2018
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 29th August, 2018
+ RFA(OS) 62/2018
NARENDER KUMAR GUPTA ..... Appellant
Through: Mr Sanjay Mishra, Adv
versus
ANITA GUPTA & ORS ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
CM No. 34978/2018 (exemption)
Exemption is allowed subject to just exceptions.
Application stands disposed of.
CM No. 34976/2018 (delay in filing)
1. Challenge in this appeal is to the preliminary decree passed by a
learned Single Judge of this court dated 12.11.2014. Along with the appeal
an application being CM No. 34976/2018 has been filed under Section 5 of
the Limitation Act seeking condonation of delay of 1513 days in filing the
appeal. Learned counsel for the appellant submits that the delay has
occurred on account of bona-fide reasons and not on account of any
carelessness or inaction on the part of the appellant. Learned counsel
contends that the appellant is suffering from Veri Cose Veins and has been
undergoing treatment since the year 2005, has remained bed ridden and has
been taking continuous treatment from Hindu Rao Hospital, Lok Nayak
Hospital, AIIMS, Dr. Ram Manohar Lohiya Hospital, Sir Ganga Ram
Hospital, Ayurvedic and Unani Tibbia College Hospital and Aruna Asaf Ali
Hospital. Reliance is placed on prescriptions of various hospitals.
2. We have heard the learned counsel for the appellant and carefully
examined the application seeking condonation of delay and the documents
annexed with the application.
3. We find that the prescriptions and copies of investigations, some of
which pertain to year 2018, the discharge summary from Sir Ganga Ram
Hospital pertains to 04.03.2018, the diagnosis with regard to Veri Cose
Veins is dated 03.01.2017, the prescription from Harnam Singh Charitable
Medical Centre pertains to 04.01.2017, the prescription from Aruna Asaf Ali
Hospital is dated 07.03.2017, the prescription from AIIMS is dated
18.06.2016, the prescription from Dr. Ram Manohar Lohiya Hospital is
dated 29.06.2016, the prescription from Malhotra Medical Centre is dated
16.09.2014. None of the prescriptions or discharge summaries show that the
appellant has been either bed ridden for a long period of time or was in any
way handicapped in performing his day to day activities. Learned counsel
for the appellant also urged that the question of law is involved.
4. The Supreme Court of India has culled out various factors which are
to be considered while dealing with an application seeking condonation of
delay, in the case of "Esha Bhhatacharjee vs Managing Committee of
Raghunathpur Nafar Academy and Ors." Repored in (2014) 2 SCC (LS).
Paragraph 15 is produced herein below wherein it has been observed as
under:-
"From the aforesaid authorities the principles that can broadly
be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for
condonation of delay, for the courts are not supposed to
legalise injustice but are obliged to remove injustice.
ii) The terms "sufficient cause" should be understood in their
proper spirit, philosophy and purpose regard being had to the
fact that these terms are basically elastic and are to be applied
in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and
uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of
delay but, gross negligence on the part of the counsel or litigant
is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation
of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should
not affect public justice and cause public mischief because the
courts are required to be vigilant so that in the ultimate
eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
viii) There is a distinction between inordinate delay and a delay
of short duration or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it may not be
attracted. That apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the
courts are required to weigh the scale of balance of justice in
respect of both parties and the said principle cannot be given a
total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged
in the application are fanciful, the courts should be vigilant not
to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and
the approach should be based on the paradigm of judicial
discretion which is founded on objective reasoning and not on
individual perception.
xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude."
5. No doubt while considering an application under Section 5 of the
Limitation Act, the approach of the court should be liberal, pragmatic and
justice oriented, however, the courts must also keep in mind that delay which
is deliberate or on account of gross negligence on the part of a counsel or a
party or an application which lacks bona fide should not be entertained. The
present case is not one of an illiterate or poor litigant.
6. On account of the fact that there is gross unexplained delay and
keeping in view the law laid down by the Apex Court, we find no ground to
condone the delay. The application is dismissed.
7. Resultantly, the appeal and CM No. 34977/2018 are also dismissed.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
AUGUST 29, 2018
SU
