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Judgment
TARA VITASTA GANJU, J.: (Oral)
CM APPL. 29557/2024[Condonation of delay in filing the Appeal]
Notice in this Application was issued on 17.05.2024. Thereafter, the matter has been listed today.
Learned Counsel for the Appellant submits that the warrants of possession in respect of subject premises have already been issued by the learned Trial Court in Execution Proceedings Ex. No. 193/20 titled Urmila Devi v. Raj Kumar.
Learned Counsel for the Appellant submits that although the Judgement and decree was passed on 28.01.2020 [hereinafter referred to as “Impugned Judgement”], the Appellant only got notice of the same in September 2022 and thereafter, he visited the office of the Delhi High Court Legal Services Committee [hereinafter referred to as the “DHCLSC”] where he was informed by the “duty” lawyer that since he was approaching the Court to file an Appeal belatedly and 20 months after the Impugned Judgment was passed, filing an Appeal was not possible and the Appellant was advised to join the execution proceedings and file his objections in the said proceedings instead.
Learned Counsel for the Appellant further submits that the Appellant thereafter filed the objections on 12.09.2022 in the Execution Proceedings in terms of the advice so received. However, it was when the objections were dismissed by the learned Trial Court by Order dated 16.02.2024, the Appellant once again approached the DHCLSC for a Counsel to challenge the Order dated 16.02.2024 and a lawyer was appointed on 22.02.2024. It was only thereafter upon obtaining all the papers including certified copies, the Appeal was filed in May 2024 by the lawyer so appointed.
Learned Counsel for the Appellant seeks to rely upon the judgment of the Supreme Court in Mool Chandra v. Union of India & Anr., 2024 SCC OnLine SC 1878, to submit that the Appellant being a person of little means and not very educated had to rely upon advise given to him by the DHCLSC lawyer and instead of filing an Appeal he was advised to file objections to the Execution proceedings. Thus, it is contended that no negligence can be attributed to the Appellant in the present case.
Learned Counsel also seeks to rely upon the judgment of the Supreme Court ‘In re: Cognizance for Extension of Limitation, Suo Moto W(C) No. 2/2020’ to submit that the limitation for filing the Appeal would have expired in the period during which extension of time was granted by the Supreme Court.
Learned Counsel for the Appellant further submits that the decree has been passed on the basis of an admission of title in the name of the husband of the Respondent No.1/Plaintiff with respect to the suit premises at Khasra No.159, Gali No.3, Samta Vihar, Mukundpur, Extension-I, Delhi. He submits that although an admission was made by the Appellant, it was qua the title Appellant’s brother [husband of the Respondent No. 1/Plaintiff] and that there was no admission qua the title of Respondent No. 1/Plaintiff, who is his sister-in-law. Thus, the decree of possession passed by the learned Trial Court under Order XII Rule 6, CPC on admissions is liable to be set aside.
Learned Counsel for the Appellant further submits that the suit was filed in the year 2014 and was decreed in the year 2020 after evidence was led in the matter. Despite this, the Impugned Judgment is bereft of any reasons. In addition, the Impugned Judgment also does not base itself on the evidence that was led before the Trial Court.
Although Notice was issued in CM APPL. 29557/2024 [For delay] on 17.05.2024, no Reply has yet been filed by the Respondents till today. Learned Counsel for the Respondents submit that he will make oral submissions in the matter.
Learned Counsel for the Respondents submit that the subject premises belong to the Respondent No.1, who was gifted the same by her husband.
No other contentions have been urged by the learned Counsel for the Respondents.
The Supreme Court in catena of Judgments including Mool Chandra case has held that it is not the length of delay that would be required to be seen for examining a plea for condonation of delay but the cause of such delay. If sufficient cause has been shown irrespective of the length of delay, the same deserves to be condoned. It is further held that if negligence is attributable to a party then delay cannot be condoned. However, where there is no negligence shown, the Court may examine and condone the same on sufficient cause being shown. The relevant extract is reproduced below:
“20.Be that as it may. On account of liberty having been granted to the appellant to pursue his remedy in accordance with law, yet another O.A. No. 2066 of 2020 along with an application for condonation of delay came to be filed. The delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned. xxxx xxxx xxxx
22.If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay. This Court in Municipal Council, Ahmednagar v. Shah Hyder Beig 2000 (2) SCC 48 has held:
“6.Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case (N.L. Abhyankar v. Union of India [(1995) 1 Mah LJ 503]) observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case [(1995) 1 Mah LJ 503] stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated:
“The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.” [Emphasis supplied]
Upon an examination of the reasons as set out in the Application and has been set out above herein, this Court finds that even though the delay is substantial, it has been sufficiently explained. In addition, prima facie the Appellant has not been negligent in pursuing his remedies. However, with a view to examine the matter on merits, this Court deems it expedient to hear the parties further.
The Application is accordingly disposed of.
RFA 334/2024 & CM Appl.29556/2024[Stay]
Issue Notice.
Learned Counsel for the Respondent accepts Notice.
Learned Counsel for the Appellant submits that the warrants of possession will be executed in the next three days. It is further submitted that the Appellant has a good prima facie case and the balance of convenience is also in his favour.
Given the circumstances of the case as discussed above, until the next date of hearing, the enforcement of the Impugned Judgment is kept in abeyance.
In the meantime, learned Counsel for the parties shall file their respective written synopsis, not exceeding three pages, at least one week before the next date of hearing, along with the compilation of judgments, if any, they wish to rely upon.
All judgments sought to be relied upon by the learned Counsel for the parties shall be filed with an index which also sets out the relevant paragraph numbers and the proposition of law that it sets forth.
List for hearing on 23.10.2024 at 4 pm.
Registry is directed to place on record the digital copy of the Trial Court Record duly paginated and book-marked in accordance with the rules of the High Court.