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IN THE HIGH COURT OF DELHI AT NEW DELHI
C.Hari Shankar, J.
Bhagwan Singh - Appellant
Versus
Delhi Development - Respondent
RSA 28/2022, CM APPL. 13822/2022 and CM APPL. 13823/2022
Decided On : 22-03-2022
DELAY CONDONATION - Civil Procedure - Limitation Act, 1963 [Entry 116 (b)] - The court dismissed the appeal on the ground of delay condonation. The appellant failed to provide sufficient grounds for the delay and the court found that the reasons presented, such as lack of resources and heavy workload, were not justifiable. The court also noted that the appellant's new ground involving the illness and subsequent death of his mother did not provide a valid reason for the delay. The court held that without a substantial question of law, it could not interfere with the order solely on the ground of sympathy.
Fact of the Case:
The appellant filed an appeal against the judgment of the trial court, seeking condonation of a 100-day delay in filing the appeal. The trial court had dismissed the suit, and the appellant cited lack of resources and heavy workload as reasons for the delay.
Finding of the Court:
The court found that the reasons presented by the appellant for the delay were not justifiable. The new ground involving the illness and subsequent death of the appellant's mother was also deemed insufficient to justify the delay.
Issues: The main issue was the condonation of delay in filing the appeal, with the appellant citing lack of resources and heavy workload as reasons for the delay. The appellant also presented a new ground involving the illness and subsequent death of his mother.
Ratio Decidendi: The court held that without a substantial question of law, it could not interfere with the order solely on the ground of sympathy. The reasons presented by the appellant for the delay were not deemed sufficient to justify the delay.
Final Decision: The court dismissed the appeal in limine as no substantial question of law arose from the appeal. All miscellaneous applications were also disposed of.
JUDGMENT
1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns an order dated 10th 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 delayin 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 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
LA. 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:
Bhag wan 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
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