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2007 DIGILAW 466 (DEL)

MUNICIPAL CORPORATION OF DELHI v. BABU RAM

2007-03-01

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.- The indisputable facts of this case are these. The Trial Court dismissed the suit of the plaintiff/respondent for permanent injunction in respect of the disputed plot in which he claimed to be in possession since 1954, vide judgment dated 15.10.1998. The First Appellate Court accepted the appeal. It restrained the MCD from demolishing the room and dhaba or taking possession of the same and goods situated at II-F/104, Lajpat Nagar, New Delhi vide order dated 8.2.2001. The instant appeal was preferred in this Court on 11.5.2006 i.e. after the expiry of more than five years. The said appeal is accompanied by an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal wherein the following averments are made. Appellant Corporation was not informed about the judgment dated 8.2.2001. The appellant MCD came to know about the impugned judgment in March, 2004. Application for cel1ified copy was moved on 17.3.2004 and the same was made available on 19.3.2004. The appellant engaged Mr. M.S. Oberoi, Advocate to file this appeal. He filed this appeal on 24.2.2005 vide diary No. 7935. The Registry returned the appeal with objections and thereafter the same was not re-filed as the Clerk of Counsel had misplaced the original appeal. Thereafter, the present Counsel was engaged on 7.6.2004 but the records of the file were not available. After the records were made available, she filed the present appeal. It is contended that the delay in filing this appeal is neither wilful nor intentional but due to the above mentioned circumstances. 2. I have heard the Counsel for the parties. The Counsel for the appellant reiterated her stand. On the other hand, the Counsel for the respondent has drawn my attention towards the fact that the appellant was served with ‘Annexure A in RSA No. 64/2001 on 11.11.2002, wherein Hari Ram (respondent therein) had mentioned clearly, specifically, and unequivocally at Serial No. 11 of the Index as under: "11 . Copy of judgment dated 8.2.2001. In RCA No. 85/1998 in re Babu Ram v. MCD, passed by Ms. Asha Menon, ADJ. Delhi...............Pages 20-70". This clearly goes to show that the appellant had knowledge about this case as back as on 11.11.2002. 3. Secondly, it was also pointed out that three cases were decided on 8.2.2001. Copy of judgment dated 8.2.2001. In RCA No. 85/1998 in re Babu Ram v. MCD, passed by Ms. Asha Menon, ADJ. Delhi...............Pages 20-70". This clearly goes to show that the appellant had knowledge about this case as back as on 11.11.2002. 3. Secondly, it was also pointed out that three cases were decided on 8.2.2001. In the other case pertaining to MCD v. Hari Ram, in RSA No. 64/2001, the respondent filed the preliminary objections. Objection No.2 runs as follows: "2. That the appellant is also guilty of suppression of facts by not disclosing that it has accepted the verdict of the Lower Appellate Court in the following three similar cases decided on the same day by Ms. Asha Menon, ADJ and no appeal was filed by the appellant challenging its findings: Name of the party Suit No. Property in question Babu Ram v. MCD 85/98 11-F/104, Lajpat Nagar, New Delhi. (Part of the same property as that of the respondent). Satguru Iron & 84/9811-F, Lajpat Nagar. New Delhi. Finance v. MCD (Opposite to the property in Question) Purshottam Lal 83/9811-F, Lajpat Nagar, New Delhi. Gupta v. MCD(Opposite to the property in Question) In view of the above facts, the present appeal is not maintainable." 4. In response to this objection, MCD gave the following reply: "In response to preliminary objection No.2, it is submitted that the appellant has not concealed/suppressed as mentioned in this objection." 5. The Counsel for the respondent vehemently argued that the appellant was well aware about the pendency of the case in respect of Babu Ram. 6. I am of the considered view that the learned Counsel for the appellant has failed to prove that she has a sufficient ground in getting the delay condoned in filing the instant appeal. As a matter of fact, another appeal filed in RSA No. 139/ 2004 by one of these three persons viz. Satguru Iron Store v. MCD was dismissed by this Court as barred by limitation. The relevant order dated 1.5.2004 passed by HMJ Manmohan Sarin is reproduced as follows: "There is gross delay of three years and two months in filing of this appeal. The only reason given is that the Department received the certified copy of the order dated 8.2.2001 on 24th March. 2004, and thereafter Department was requested to engage a Counsel for filing the appeal. The only reason given is that the Department received the certified copy of the order dated 8.2.2001 on 24th March. 2004, and thereafter Department was requested to engage a Counsel for filing the appeal. There are no particulars given as to when the certified copy was applied for. It is also not stated in the application whether the Counsel applied for the order or not. In the absence of these particulars, the application under Section 5 of the Limitation Act itself deserves to the dismissed and is accordingly dismissed. Consequently, appeal stands dismissed as barred by limitation." 7. The instant case of the appellant stands on a weaker footing because there is further delay of two years. The authorities reported in Warlu v. Gangotribai & Anr., AIR 1994 SC 466 ; MCD v. Parmod Nath & Ors., 1991 APEXSOFT (Delhi) 84=43 (1991) Delhi ,Law Times 498, and M. Subramania Mudaliar v. K. Janardhanam, AIR 1994 Madras 102, go to embolden the case of the respondent. In the last case, the Court refused to condone the delay of six years. 8. It must be borne in mind that institutions like MCD have their own legal cell to deal with such like matters. The plea of delay is not coming from a layman or a villager. It appears to be the case of gross negligence and callous indifference on part of the appellant as well as its various Counsel. 9. The application moved by the appellant under Section 5 of the Limitation Act is accordingly dismissed. RSA No. 15//2006 10. In view of the dismissal of the application for condonation of delay, the appeal is barred by limitation and is, consequently, dismissed. Application and RSA dismissed.