Mussoorie Dehradun vs Shri Gurmej Singh ... Plaintiff/
2021 Latest Caselaw 1427 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (M/S) No. 55 of 2011
Mussoorie Dehradun
Development Authority                      ...      Defendant/Petitioner

                                     Vs.
Shri Gurmej Singh                          ...      Plaintiff/Respondent
Advocates :   Mr. Rahul Consul, Advocate, for the petitioner.
              Mr. Nagesh Aggarwal, Advocate, for the respondent.


Hon'ble Sharad Kumar Sharma, J.

A Suit, being Suit No. 510 of 1996, Gurmej Singh Vs. MDDA, was instituted before the Court of learned Civil Judge (Senior Division)/FTC, Dehradun, for the grant of decree of permanent injunction, as against the process of recovery, which was resorted to, which was the subject matter therein. The suit, after the contest, by the defendant (petitioner herein), had been decreed by the judgement dated 25.08.2001 by the Court of Civil Judge (Senior Division), Dehradun, and following decree has been rendered:-

*oknh dk okn fMdzh fd;k tkrk gS rFkk ;g mn?kks'k.kk dh tkrh gS fd izfroknh xq:}kjk dy"kh/kj lsod lHkk ij vadfyr /kujkf"k eq- [email protected]& :i;s e; C;kt oknh ls O;fDrxr dSfiflVh esa olwy djus dk vf/kdkjh ugha gSA okn ds rF; ,oa ifjfLFkfr;ksa dks ns[krs gq, mHk;i{k okn dk O;; Lo;a ogu djsaxsA fnukad 25-08-01**

2. Though, at this stage, this Court is not concerned with the merits of the decree, which was rendered by the learned trial Court in the aforesaid suit on 25.08.2001, for the reason being that as against the said judgment and decree, the petitioner herein had already preferred an Appeal, by invoking the provisions contained under Section 96 of CPC, by filing the same before the Court of learned Appellate Court on 16.04.2003, on the pretext

that the knowledge of the said judgement / decree was acquired by him at a much belated stage on 06.03.2003.

3. The Appeal thus preferred by the petitioner on 16.04.2003, accompanied with it a delay condonation application, and in the delay condonation application, thus filed in support thereto, the reason which has been given by the petitioner was that the delay was on account of the fact that the counsel, who was representing their cause before the learned trial Court, had not informed the petitioner herein, about the decree dated 25.08.2001, and the knowledge of it could be acquired for the reasons as pleaded in para 10 of the delay condonation application, when the records of the suit was inspected by the petitioner after inducting a new counsel on 06.03.2020, and hence the petitioner, in the delay condonation application has pleaded bonafides on the pretext that since the knowledge of the judgement and decree was not given by his counsel, he could not prefer an Appeal within the time hence the delay has chanced in filing the Appeal.

4. The said application seeking condonation of delay, came up for consideration before the Court of Additional Judge/FTC, Dehradun, by way of a Miscellaneous Appeal No. 211 of 2003, in Civil Appeal No. __of 2003, Mussoorie Dehradun Development Corporation Vs. Gurmej Singh, and the Appellate Court, by the impugned judgement dated 06.03.2010, had dismissed the delay condonation application and quite obviously, consequently the appeal too would be deemed to be dismissed as a consequence of it, and has declined to condone the delay, which has chanced in filing the Appeal for the various reasons which have been given in the judgement, which is under challenge before this Court.

5. As far as the question of limitation is concerned, if it is considered from the date of the knowledge i.e. 06.03.2020, it was well within the time; but, if it is considered and determined from the date of the delivery of the judgement dated 25.08.2001, then quite obviously, it was filed at a belated stage, i.e. after a lapse of approximately more than 2 and half years and would be barred by limitation. This could have been a ground to decline to entertain a delay condonation application, but the manner in which the principles for denial to condone the delay has been applied by the learned Appellate Court, it was based on the conduct of the appellant having failed to participate in the proceedings with due diligence, with which he had participated in the proceedings of the trial Court or even before the Appellate Court, for that matter also while his delay condonation application was pending consideration and particularly recording a finding to the effect that there were various adjournments which were sought for by the petitioner that in itself cannot be extracted as to be a ground for rejection of delay for the reason being that under the General Rule (Civil), if an adjournment application has been filed by any party, and an adjournment is being sought in a proceedings pending before the Civil Court, it is always granted or rejected by the Court, based upon the objections raised by the other side. The dates of adjournments referred in the impugned order, it goes without saying that rationally it must have been granted by the Courts itself, after the no objection by the party, it was granted by the Court, and if there was an objection, then obviously by the reasons given by the Court for adjourning the matter, no benefit could be derived from the past adjournments, for the purposes of consideration of delay condonation sought in regular civil appeal, which ought to have been decided independently, past conduct cannot be taken as the basis, to reject the delay condonation.

6. The adjournment itself once it has been granted and a date is fixed, thereafter by the Court, its grant loses its significance to be considered in any subsequent, ancillary proceedings or even for that matter in the main proceedings itself, and it ought not to be extracted in order to determine the conduct or diligence of a litigant in participating in the proceedings. Hence, the reasons given in the impugned order, since is based by looking to the past conduct of the petitioner or the age of the litigation, which was instituted in 1996, cannot be an exclusively a dominating and rationale ground to reject the delay, because under the wider principles which had been laid down by the Hon'ble Apex Court, in catena of judgements, it has been consistently held that the Courts ought to have rationally and liberally construed the aspect of limitation and the purpose of determination of an issue of limitation; has to be done in a fashion to cater the principles of adjudication of a lis on merit, that a lis before the Court, is decided on its own merit rather than on the technicalities of limitation.

7. The said principles has been enunciated, in one of the leading judgements of the Hon'ble Apex Court, as reported in 2001 (8) SCC 151, M.S. Grewal and others Vs. Deep Chand Sood and others, where the theory behind considering the aspect of delay is predominantly laid down to be considered, under the pretext that if a right of person who is affected by virtue of a lapse of period of limitation; if it seriously prejudices the rights or an accrual of a right in his or her favour as a consequence of a decree, then only the aspect of limitation would have a wider bearing.

8. Looking to the facts and circumstances of the present case and the reasoning which has been given in the judgement

impugned, I am of the view that the delay caused herein which is under consideration was not so alarming that it could have led to be a deprivation of a right of the petitioner, to get the lis /Appeal decided on merits, which is always applicable on the Courts, that the endeavours of the Court to ensure a merit adjudication.

9. After having heard the learned counsel for the parties, this writ petition is allowed for the aforesaid reasons. The impugned judgement dated 06.03.2010 is quashed, subject to the following conditions:-

(1) The Delay Condonation Application would be treated to have been allowed, subject to the payment of cost of Rs. 5,000/- to be paid to the respondent/plaintiff by the petitioner. (2) The cost, as imposed above by clause (1), would be ensured to be remitted by the petitioner, within the period of one month from today, and its only on the payment of cost that the proceedings of the appeal would be revived to be decided, exclusively on its own merits.

(3) If the cost is not paid within the aforesaid time period, the Appeal, would be deemed to be rejected on the ground of limitation, based on the impugned order dated 06.03.2010. (4) As soon as the proceedings of the Appeal, revives as a consequence of the observations made in clause (1) as referred above, the Appellate Court is requested to decide the appeal itself, on its merits, within the period of four months from the date of production of the certified copy of this order.

10. Subject to the above observations, the writ petition is allowed.

(Sharad Kumar Sharma, J.) 09.04.2021 Mahinder/