Municipal Corporation Delhi vs Bhupinder Kumar and Others

P.K. Bahri, J.

(1) This civil revision is directed against judgment dated November 27,1978, of an Additional District Judge by which he had dismissed the appeal of the petitioner as being filed beyond time and he had dismissed the application moved by the petitioner u/s 5 of the Limitation Act seeking condensation of delay. The appeal was directed against the judgment of the Sub- Judge 1st Class dated November 26, 1977.

(2) The short question which arises for decision is whether the Additional District Judge was right in his opinion that the petitioner has not disclosed any sufficient cause seeking condensation of delay in filing the appeal. The appeal was filed on January 28,1978, while the limitation expired on January 25,1978 and there was three days delay. In the application seeking condensation of delay it was mentioned that there were two suits instituted by the respondents on the same cause of action and one of the suits was dismissed earlier and without disclosing that the suit had been dismissed, another suit was filed on the same cause of action and the said suit was decreed after defense of the petitioner was struck out on failure of the petitioner to file the written statement despite a number of opportunities and as the papers had been mixed up in the files of the two suits it took time to trace out the papers and thus, a delay of three days occurred.

(3) The learned Additional District Judge, however, held that the petitioner was grossly negligent and thus, it was not a fit case for condensation of delay. It is not possible to countenance the inference of the Additional District Judge in this connection. After all a reasonable Explanation had been given for not filing the appeal within the period of limitation. It is not even mentioned by the Additional DistrictJudge in his judgment that the said Explanation is not credit worthy in any manner. The lower first appellate authority would have been well advised to hold that satisfactory Explanation had been given seeking condensation of delay.

(4) I, hence, allow the civil revision and set aside the impugned judgment and condone the delay which occurred in filing the appeal before the Additional DistrictJudge. Now the Additional District Judge shall decide the appeal on merits. The file be sent back to the District Judge who may either himself decide the appeal or may assign the said appeal for decision to any other Additional District Judge. The petitioner shall appear before the District Judge for further proceedings on September 27, 1993. No one has appeared before me on behalf of the respondents. Before deciding the appeal the Court concerned shall issue notice of hearing to the respondents.