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2009 DIGILAW 861 (DEL)

PRADIP KUMAR CHAKRA VARTY v. SATISH MIGLANI

2009-08-10

ARUNA SURESH

body2009
JUDGMENT Aruna Suresh, J. (Oral)- Learned Counsel for the appellant has stated at the Bar that he is not at issue with the appellant whether this appeal is maintainable. He concedes that the appeal challenging the order of the ADJ dated 22.9.2005 whereby he refused to condone the delay of 350 days in filing the appeal, is maintainable. Hence, the question if appeal is maintainable against the impugned order has become redundant and needs no adjudication. This is no longer res integra. 2. Appellant married the respondent on 30.1.1964 at Calcutta. He lived with the respondent in Delhi since 1970. During his stay at Delhi property bearing No. D-5, Ansal Villas Farm, was purchased in the name of the respondent, allegedly Benami by the appellant, who claims that he paid Rs.l,52,563/ -as the consideration amount for purchase of the said property. 3. Thereafter, a decree for divorce was obtained by the appellant against the respondent on 26.9.1994 on the grounds of cruelty and adultery. Respondent advertised on 1.4.1990, in Hindustan Times, for the sale of the said property. A counter warning public notice was issued by the appellant on 15.5.1990 in the same newspaper. Thereafter, appellant filed a suit on 30.5.1991 seeking cancellation of the sale deed dated 24.11.1980 pertaining to the said property executed in favour of the respondent. The said suit was contested by the respondent. 4. The learned civil Judge, vide order dated 17.8.2004 dismissed the suit of the appellant with cost as being barred by provisions of Benami Transaction (Prohibition) Act. Against the judgment and decree, appellant filed an appeal before the Additional District Judge on 30.8.2005 along with an application under Section 5 of the Limitation Act seeking condonation of delay of 350 days. The learned Additional District Judge, vide impugned order dated 22.9.2005 dismissed the application as without any sufficient cause and also dismissed the appeal being barred by period of limitation. Hence, the appeal before this Court. 5. The learned Additional District Judge, vide impugned order dated 22.9.2005 dismissed the application as without any sufficient cause and also dismissed the appeal being barred by period of limitation. Hence, the appeal before this Court. 5. It is argued by the learned Counsel for the appellant that the previous Counsel for the appellant, vide his letter dated 18.8.2004, had informed him that the suit had been decreed but, when appellant came to know on 10.8.2005 that the suit property was being sold by the respondent, he contacted his Counsel Narendra Kalra who informed him that the suit was not decreed but was dismissed and for that purpose he also executed an affidavit on 23.8.2005. It is submitted that because of the fault of the previous Counsel the appellant should not be made to suffer. Therefore, the appellate Court was not justified in dismissing the application under Section 5 of the Limitation Act and consequent dismissal of the appeal. 6. These submissions are refuted by the Counsel for the respondent. 7. Learned .Counsel for the appellant has referred to Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & OTS., AIR 1987 SC 1353 to support his submissions. In the said case, it was observed that the expression sufficient cause incorporated in this section is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. The Courts have been making justifiably liberal approach as it is realized that: "I. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense in pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. The doctrine must be applied in a rational common sense in pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 8. Keeping in mind the above said perception of law, I do not find it a fit case to condone the delay in filing the appeal as appellant has failed to show sufficient ca use. 9. Mr. Narendra Kalra, Advocate purported to have written a letter dated 18.8.2004 addressed to the appellant informing him that his suit had been decreed on 17.8.2004. Affidavit of Mr. Narendra Kalra, Advocate filed by the appellant is of great consequence. 10. In para 2 of this affidavit, the Advocate has deposed that it was on the basis of information given to him by his clerk that he informed the appellant through his letter dated 18.8.2004 that the case was decreed. It was when appellant asked him for a certified copy that he came to know that the case was not decreed but was decided against the appellant. It is pertinent that the information submitted to the appellant by the Counsel was not based on his personal knowledge. Also in his affidavit Advocate Narendra Kalra is silent as to when appellant contacted him and asked for certified copy and when he applied for the same. Admittedly, despite this serious lapse on the part of the Counsel, appellant did not make any complaint against the erring Advocate. It seems that appellant had approached his previous Counsel almost a year after the dismissal of the suit. 11. The appellant has failed to explain each and every days delay. The appellant should have disclosed the date on which he contacted his Counsel to get the certified copy of the judgment. It seems that appellant had approached his previous Counsel almost a year after the dismissal of the suit. 11. The appellant has failed to explain each and every days delay. The appellant should have disclosed the date on which he contacted his Counsel to get the certified copy of the judgment. Appellant as well as his previous Counsel have been negligent in handling the matter. None of them tried to obtain any personal knowledge or information from the Court about the fate of the case. At the time when the judgment was pronounced in the Court, the party or his Counsel was required to be present. However none was present. 12. The appellate Court referred to Darshan Lal v. Malia Rai, 110 (2004) DL T 516 to come to the conclusion that where the entire blame is put on the lawyer but no complaint has been made against him to the concerned authority, the plea that the Counsel had informed him erroneously of the fate of the case cannot be considered as a sufficient cause for condonation of delay. 13. Under these circumstances, no substantial question of law can be formulated as there is none. Hence, the appeal is dismissed. Appeal dismissed.