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High Court Of Delhi
S.R.KULKARNI - Appellant
Versus
BIRIA VXL LIMITED - Respondent
REGULAR FIRST APPEAL 51 of 1998
Decided On : 05/14/1998
LIMITATION ACT - CONDONATION OF DELAY - REFILING OF APPLICATION - DELAY IN REFILING - CAUSAL APPROACH - COSTS - [ORDER XLI, RULE 3, CIVIL PROCEDURE CODE] [RULE 5, HIGH COURT RULES AND ORDERS] [RULE 2, HIGH COURT RULES AND ORDERS] - The court held that the delay in refiling an application for leave to defend should be considered differently from the delay in initial filing. The court found that the appellant had not been diligent in checking whether the application was lying in the Registry with any objection, and that the counsel's casual approach had resulted in the delay. However, the court also found that there was no malafide intention on the part of the appellant to delay the proceedings. The court allowed the appeal and condoned the delay in refiling, subject to the payment of costs by the appellant to the respondent.
Fact of the Case:
The appellant filed an application for leave to defend on 19.8.95. The Registry raised objections to the application, and the appellant removed the objections on 4.3.96. However, the Registry raised a second objection, which the appellant removed on 21.3.96. The appellant refiled the application on 27.3.96, which was beyond the time allowed by the Registry. The appellant filed an application seeking condonation of delay in refiling the application.
Finding of the Court:
The court found that the appellant had not been diligent in checking whether the application was lying in the Registry with any objection, and that the counsel's casual approach had resulted in the delay. However, the court also found that there was no malafide intention on the part of the appellant to delay the proceedings.
Issues: Whether the delay in refiling an application for leave to defend should be considered differently from the delay in initial filing.
Ratio Decidendi: The court held that the delay in refiling an application for leave to defend should be considered differently from the delay in initial filing. The court found that the appellant had not been diligent in checking whether the application was lying in the Registry with any objection, and that the counsel's casual approach had resulted in the delay. However, the court also found that there was no malafide intention on the part of the appellant to delay the proceedings.
Final Decision: The court allowed the appeal and condoned the delay in refiling, subject to the payment of costs by the appellant to the respondent.
( 1 ) RULE 5 is as under :-
"rule - 5. Amendment - The D. R. , A. R. , Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the court record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memo. of appeal, for die reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memo. of appeal is not taken back for amendment within the time allowed by DR, A. R. , it shall be registered and listed before the court for its dismissal tor non-procecution. (3) It the memo. of appeal is filed beyond the time allowed by the D. R. , A. R, under sub-rule (1) it shall be considered as fresh institution. "note - The provisions contained in Rule 5 (1), 5 (2) and 5 (3) shall mutatis munadis apply to all matters, whether civil or criminal.
( 6 ) RULE-2 reads as under :- Rule-2. Endorsement and scrutiny of documents.
" (A)THE officer in charge of the filing-counter shall endorse the date of receipt on the plaint, petition, application or proceedings and also on the duplicate copy of the index and return the same to the party. He shall enter the particulars of all such documents in the register of daily filing and thereafter cause it to be sent to the office concerned for examination. If on scrutiny, the document is found to be defective such document shall after notice to the party filing the same be placed before the Registrar. The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party conerned such reasonable time as he may consider necessary. (b) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the document. (c) Any party aggreived by any order made by the Registrar under this rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers. "
( 7 ) REFERENCE has also been made to certain practice directions issued by the High Court conerning the filing and return of documents. The contention of Mr. Gupta is that the refiling of the application for leave to defend would be governed by aforesaid Rule-2 and refiling of such a document does not amount to fresh institution as aforesaid rule in Vol. 5 of High Court Rules and Orders has no applicability to the matters on the Original Side of this Court. For the view, we are taking on mertis of the facts of the present case, it is not necessary to decide the contention urged by Mr. Gupta.
( 8 ) NOTWITHSTANDING which of the aforesaid Rules are applicable, the question of condonation of delay in refiling of an application has to be considered from a different angle and viewpoint as compared to consideration of condonation to delay in initial filing. The delay in refiling is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed u/s 5 of the Limitation Act (See Indian Statistical Institute Vs. Associated Builders AIR 1978 SC. (335 ). In the present case, the initial delay of 7 days in filing the application for leave to defend stood condoned and that has not been challenged by any of the parties. It is no doubt true that the counsel for the appellant had not been very diligent after filing of application for leave to defend on 19. 8. 95 as counsel did not check whether the application was lying in Registry with any objection or not. Considering, however, the nature of the objections, it was a matter of removal of the objections by die counsel and on the facts of present case, it is difficult in this case to attribute any negligence to the party. On the facts of the case, the" effect of negligence or casual approach , which would be the appropriate term to be used here, of the counsel or his client, does not deserve to be so
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