Delhi High Court
Bhagwan Singh vs Delhi Development Authority & ... on 22 March, 2022
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 28/2022, CM APPL. 13822/2022 (Order XXXIX Rules 1
and 2 CPC) and CM APPL. 13823/2022 (exemption)
BHAGWAN SINGH ..... Appellant
Through Mr. Samson Honey, Adv.
Versus
DELHI DEVELOPMENT
AUTHORITY & ANR. ..... Respondents
Through Mr. Sanjay Katyal, Standing
Counsel for DDA
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGEMENT (ORAL)
% 22.03.2022
1. This second appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns an order dated 10 th February, 2022,
passed by the learned Additional District Judge, Karkardooma Courts
("learned ADJ"), who has dismissed the first appeal of the appellant
on the ground of delay. The impugned order reads thus:
"Appeal under Order XLI Rule 1 read with Section 96 of
the CPC against the judgment dated 04.04.2019 passed by
Ld. ASCJ, KKD Court, Delhi in Civil Suit No.9876/2016
JUDGMENT
1.) The subject matter of the present adjudication is the
appeal under Order 41 Rule 1 read with Section 96 CPC against
the impugned judgment dated 04.04.2019 passed by Ld. ASCJ,
KKD Courts, Delhi in Civil Suit No.987p/2016. Vide the
impugned order the Ld. Trial Court had dismissed the present
suit. The appeal under consideration is also accompanied with
an application dated 17.07.2019 seeking condonation of delay
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
in filing the appeal. In the said application it is prayed that the
delay of 100 days be condoned.
2.) Arguments as addressed by both the appearing parties
heard.
3.) In the application seeking condonation of delay the only
ground as stated therein is that 'due to lack of resources the
appellant could not avail legal advice and hence could not file
the appeal within the prescribed period'.
4.) As per the 'Second Division' of the Schedule to the
Limitation Act, 1963 [Entry 116 (b)] the prescribed period for
filing of appeal is-· '30 days' reckoned from the date of decree
or order. In the given context the impugned order was passed as
on 04.04.2019 where the appeal under consideration has filed
as on 19.07.2019. This way there was delay of87 days and not
of 100 days as averred in application in hand.
5.) Now coming to the merits of the application in hand the
only ground reflected therein is that of lack of resources to file
the present appeal. As a matter of fact the suit had not been
filed as an 'Indigent person'. Moreover, as per the averments
made in the plaint itself the plaintiff/applicant/appellant has
been in possession and has been running a Horticultural/
Agricultural Nursery in an area of approximately half an acre in
the Geeta Colony area of East Delhi and it thus" becomes
incomprehensible as to how he was lacking resources for filing
the appeal; more so when he has in no way and nowhere shown
any such financial incapacity/handicap so as to lean towards
him.
6.) Thus, as a matter of fact there was no ground at all for
the delay in filing the appeal and there is no explanation at all
(leave aside the day to day explanation for each day of delay)
for the delay of approximately 3 months in filing the present
appeal.
7.) Accordingly, the application seeking condonation of
delay is found and held to be devoid of merits/grounds and is
hereby disposed of as dismissed. As the application seeking
condonation of delay has been dismissed, the appeal in hand
is bound to follow on the footsteps of the same. Hence, the
Appeal under consideration also stands disposed as dismissed
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
being time barred. Decree-sheet be prepared accordingly and
consigned to record room.
Announced in the open
court on 10th February, 2022.
Sd.
(Raghubir Singh)
Additional District Judge-01
(East)/KKD/Delhi"
2. The application for condonation of delay, preferred by the
appellant before the learned ADJ, reads as under:
"IN THE COURT OF HON'BLE DISTRICT JUDGE
(EAST) KARKARDOOMA COURT DELHI
I.A. No. ______2019
IN
Civil Appeal No. _ /2019
(Arising from the judgment dated 04.04.2019 passed by Ld.
Additional Senior Civil Judge, Karkardooma Court, Delhi in
Civil Suit No. 9876/2016)
In the matter of:
Bhagwan Singh ... Appellant
Vs.
Delhi Development Authority and others .. Respondents
And, in the matter of:
APPLICATION UNDER ORDER XLI RULE 3A, SUB-
RULE (1) AND (2) OF THE CPC SEEKING
CONDONATION OF DELAY IN FILING THE APPEAL
AGAINST THE MPUGNED ORDER DATED 04.04.2019
PASSED BY LD. ADDITIONAL SENIOR CIVIL
JUDGE, KARKARDOOMA COURT, DELHI IN CIVIL
SUIT NO. 9876/2016
The appellant above named
MOST RESPECTFULLY SHOWETH:
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
1. The appellant above named has filed the accompanying
appeal being aggrieved from the judgment dated 04.04.2019
passed by Ld. Additional Senior Civil Judge, Karkardooma
Court, Delhi (hereinafter. referred to as "Ld. Trial Court") in
Civil Suit No. 9876/2016 whereby the said suit has been
dismissed under Order XII rule 6 and Order: XV rule 1 of the
CPC. The contents of the said appeal may kindly be read as
part and parcel of this application also as the same are not
repeated herein for the sake of brevity.
2. That the certified copy of the impugned judgment was
prepared and released on 26.04.2019 i.e. only after 3 days of
its apply.
3. That thereafter due to lack of resources, the appellant
could not avail legal advice and could file the appeal within
limitation period. The limitation to prefer the instant appeal
has since expired.
4. That the appellant arranged resources and approached
counsel undersigned in the first week of July requesting him
to prepare and file an appeal against the impugned order.
5. That because of heavy works, the appeal could not be
prepared by the counsel immediately and the same is being
prepared and being filed at this stage after a delay of 100 days
has occurred.
6. That said delay in filing of the captioned appeal is
neither intentional nor deliberate but because of bonafide
reasons as submitted hereinabove. Great hardship and
prejudice would be caused to the appellant, if the above
mentioned delay in filing of the appeal is not condoned by this
Hon'ble Court and the matter is not decided on its merits. On
the other hand, no prejudice would be caused !o respondents,
if the delay in filing of the appeal is condoned and the appeal
above mentioned is taken up and decided by this Hon'ble
Court on its merits.
PRAYER
Therefore, this 'Hon'ble Court may graciously be
pleased to:
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
(i) Condone the delay of 100 days in filing of the
captioned appeal against the judgment dated
04.04.2019 passed by Ld. Additional Senior Civil
Judge, Karkardooma Court, Delhi in Civil Suit No.
9876/ and
(ii) Pass any other order that is deemed fit and
proper in the facts and circumstances of the case.
It is prayed accordingly.
Filed by
Sd.
Appellant
Through
Counsel for the appellant
Delhi
Dated 17/7/2019"
3. The application cites, as the only ground for seeking
condonation of delay, "lack of resources", which prevented the
appellant from obtaining legal advice and filing the appeal within
limitation and "heavy works", as a result of which the appeal could
not be prepared by the counsel within time.
4. The application does not disclose the resources of the appellant
or explain as to why they were insufficient to enable the appellant to
file the appeal within time. Similarly, "heavy works" could hardly be
said to be a sufficient ground to seek condonation of delay.
5. The learned ADJ has observed, in the impugned order, that the
appeal was not filed by the appellant as an indigent person and that,
even as per the averments in the plaint, the appellant was running a
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
horticultural/agricultural nursery, which belied the submission that he
was lacking in resources to obtain legal advice and file an appeal.
6. In this second appeal, the appellant has sought to advance an
entirely new ground, involving the illness of his mother, who
subsequently, expired on 26th March, 2021. The impugned order of
the learned trial court, which was impugned before the learned ADJ
was passed on 4th April, 2019. The limitation for filing the appeal,
thereagainst, expired on 4th May, 2019. The appeal came to be filed
on 19th July, 2019.
7. As per the averments in the present appeal, the appellant's
mother expired on 26th March, 2021, nearly two years after the date
for filing the appeal before the First Appellate Court. No material to
indicate that the appellant was unable to file the appeal within time in
April, 2019, as he was involved in tending to his ailing mother, has
been placed on record.
8. Though the delay in filing the appeal before the First Appellate
Court was not gross by any standard, this Court is exercising
jurisdiction under Section 100 of the CPC. Section 100 of the CPC
permits the Court to interfere only if there is a substantial question of
law, which arises from the orders of the courts below. Absence the
existence of any SQL, the Section 100 Court cannot interfere with the
order under challenge solely on the ground of sympathy.
9. In the aforesaid facts and in exercise of the jurisdiction of the
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
Court under Section 100 of the CPC, the Court cannot revisit the
grounds taken by the appellant for condonation of delay, or be more
empathetic, to the appellant, than the courts below.
10. I am constrained, therefore, to dismiss the present appeal in
limine as no substantial question of law arises therefrom. All
miscellaneous applications are also disposed of.
C.HARI SHANKAR, J
MARCH 22, 2022
r.bararia
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:25.03.2022
13:24:33
