Vikram Bakshi and Others vs Mrs. Sonia Khosla and Others

M.L.Mehta, J.

C.M. No. 13701/2010 (delay) In CONT. APP. (c) No. 27/2010

Vide this order, the aforesaid application for condonation of delay is being disposed of.

The Appellants have filed contempt appeal being 27 of 2010 on 13th July, 2010, against the order dated 26th April, 2010, passed by the learned Single Judge in CCP No. 2 of 2010. The instant application, is filed for seeking condonation of delay in filing the said appeal. The statutory limitation period for filing the appeal was admittedly 30 days from the date of the order. The appeal, filed on 13th July, 2010, admittedly, appears to be time barred.

It is stated that order dated 26th April, 2010 was ex-parte against the Appellants and they got the copy of the order only on 17th May, 2010. The same was handed over to the counsel for the Appellants during last week of May, 2010 for taking necessary steps and for preparing the present appeal. Since the Courts were about to close for summer vacations, learned Counsel for the Appellant was busy in attending other matters between the parties. It is averred that during summer vacations, learned Counsel for the Appellants was out of station and returned on 30th June, 2010. He prepared a draft appeal and sent the same to the Appellants for finalizing the same on 4th July, 2010, but since Appellant No. 1 was out of station uptill 10th July, 2010, the same was signed by him only on 12th July, 2010. It is averred that the delay in filing the present appeal is neither intentional nor deliberate, but for bona fide reasons.

The application was opposed and contested by Mr. Deepak Khosla, Respondent No. 2 in person. He submitted that the counsel for the Appellants had the knowledge of the orders passed on 26th April, 2010, as he was present in the Court on that date in some other case between the parties. He also submitted that copy of the order was also given to learned Counsel for the Appellants on 27th April, 2010 i.e., on the next day and that the counsel was also informed about the passing of the order by e-mail. He further submitted that the period of thirty days was to be calculated from the day of knowledge of the order dated 24th April, 2010. Mr. Deepak Khosla relied upon the case of Khemchand Agrawal v. Commissioner, Irrigation, Government of Orissa 2004 LS 28.

This fact was not denied by learned Counsel for the Appellants that Mr. Khosla informed him about the passing of the order of 26th April, 2010 in the Court when he was present in some other matter. However, it is denied that the copy of the order was supplied to him on that day.

There is no dispute that the order of learned Single Judge dated 26th April, 2010 was ex-parte against the Appellants. Mr. Deepak Khosla informed the learned Counsel for the Appellants about the passing of the aforesaid order in the Court on 26th April, 2010. A copy of the same was also given to him on the next day i.e. 27th April, 2010 (though denied). The admitted fact is that the Appellants received the copy of the order on 17th May, 2010 with the notice of the contempt petition dated 26th April, 2010. The aforesaid judgment relied upon by Mr. Deepak Khosla is not applicable in the present case, inasmuch as, in the said case, no application for condonation of delay was filed along with the main petition, but was filed later on. In any case, that case related to applicability of Section 20 of Contempt of Courts Act, 1971 which provided for limitation of one year for initiation of contempt proceedings. It was in that context that Section 5 of the Limitation Act, 1963 was held to have no applicability to the proceedings under the Contempt of Courts Act. There are catena of judgments which have held that ''sufficient cause'' required to be established for condonation of delay should receive a liberal construction so as to advance substantial justice when no negligence or inaction or bona fides is imputable to a party. Whether explanation furnished would constitute ''sufficient cause'' or not will depend upon the facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. The Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by slipshod order. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. A liberal approach is to be adopted and sufficient cause must be made out in a pragmatic manner and a pedantic approach calling upon a party to explain each days delay is to be avoided.

Reference in this regard is made to Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, .

The instant application is supported with the affidavits of all the Appellants. The period of limitation is to be calculated not from the day of the knowledge but form the day of receipt of copy of the order. That being the case, the period is to be calculated from 17th May, 2010. In this view of matter, the limitation period was to expire on 16th June, 2010. Admittedly, the Courts were closed for summer vacations during this period and re-opened on 1st July, 2010. The appeal is filed on 13th July, 2010. Therefore, the delay is of 13 days i.e., from 1st July to 13th July, 2010. The Appellants have explained that Appellant No. 1 was out of station from 4th to 10th July, 2010 due to some business engagements and returned on 10th July. Apparently, there was some element of carelessness on the part of the Appellants in not filing the appeal between 1st to 4th July, 2010 or on 11th/12th July, 2010. Keeping in view the entire gamut of litigation pending between the parties and consequential effects of the order dated 26th April, 2010 restraining the Appellants, it could not be said that the Appellants inaction was deliberate or intentional.

Keeping in view the principals of law regarding condonation of delay, as noted above, and large ongoing litigation and contest being made by the parties against each other, we are inclined to exercise our discretion and condone the delay in filing the instant application. The same is, hereby, allowed.