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2011 DIGILAW 195 (DEL)

Rajinder Kumar Gupta v. State

2011-02-04

MOOL CHAND GARG

body2011
JUDGMENT Mool Chand Garg, J. 1. This order shall dispose of the application filed by the Appellant seeking condonation of delay in filing the certified copy of the impugned judgment dated 13.10.2008. The application has been filed on the plea that the Appellant had not filed the certified copy of the judgment along with the appeal and filed only a true copy with an application for exemption from filing certified copy. It has been stated that he was advised by the counsel for the Appellant that there was no requirement of filing certified copy at the time of filing of the appeal. Accordingly, the Appellant filed a true copy of the judgment along with the appeal as he wais also advised that the certified copy will be filed as and when directed by this Court. 2. The Appellant further submits that in view of the order passed by this Court on 09.11.2010, the Appellant has filed this application along with a certified copy. It may be observed here that this application has been filed by the Appellant on 02.12.2010. There is a delay in filing the said application and, therefore, he has sought condonation of delay in filing of that application also. 3. The application has been opposed by the Respondent who even filed a reply to the said application. The Respondent have taken preliminary objections about the filing of the application in question inasmuch as it has been stated that the Appellant has failed to disclose sufficient and reasonable cause for delay in filing the certified copy of the judgment and the order dated 13.10.2008. It is submitted that the present appeal was filed on behalf of the Appellant on 12.12.2008 and since then he Appellant has not bothered to file the certified copy of the impugned judgment and order dated 13.10.2008 and has further chosen to file the same only on 02.12.2010 i.e. after more than two years of filing the main appeal. Further, the present application is also not supported by any affidavit of the previous counsel who as per the plea taken the Appellant in the application under reply, did not advice the Appellant to file the certified copy of the impugned judgment and order dated 13.10.2008. Further, ignorance of law cannot be any excuse and same cannot amount to sufficient cause to condone the delay of about eight hundred days. Further, ignorance of law cannot be any excuse and same cannot amount to sufficient cause to condone the delay of about eight hundred days. In the application under reply, it has been mentioned that the delay is only of fifteen days condonation whereof has been sought whereas infact the delay is of about eight hundred days and on this short ground itself the application is liable to be dismissed. 4. The Respondents have also pleaded that the Appellant having adopted dilatory tactics in filing the present appeal with a mala fide intention to defeat the legitimate rights of the answering Respondent is also not entitled to any discretion of this Court. It is further submitted that when the certified copy of the impugned order was obtained by the Appellant on 06.11.2008 than for what purposes the same was retained by the Appellant. It is submitted that it is settled proposition of law that an appeal which is not accompanied by the certified copy of the impugned order cannot be treated as an appeal in the eyes of law. It is submitted that till such time, an appeal is accompanied by certified copy of the impugned order, there is no appeal in the eyes of law and thus, the present appeal itself would be deemed to have been filed only on 02.12.2010 i.e. the date on which the certified copy of the impugned order and judgment dated 13.10.2008 was filed. 5. On merits also the Respondent has denied the averments made by the Appellant in his application. It is denied that on the last date of hearing, the Appellant came to know that certified copy of the judgment and pleadings has not been filed and only true copy of the same has been filed on record with an application for exemption from filing certified copies. It is further denied that it was advised to the Appellant that there was no requirement of filing certified copy at the time of filing of the appeal and accordingly a true copy of the judgment and pleading was filed with the appeal. It is further denied that it was advised to the Appellant that the certified copy will be filed as and when directed by this Court. It is submitted that the present Appeal was preferred on behalf of the Appellant through Mr. It is further denied that it was advised to the Appellant that the certified copy will be filed as and when directed by this Court. It is submitted that the present Appeal was preferred on behalf of the Appellant through Mr. P. Banerjee, Advocate, who appeared in the present Appeal from 16.12.2008 to 09.10.2009. Thereafter, on 09.12.2009, for the first time the Appellant was represented by a new counsel namely Mr. B.R. Sharma, Advocate who sought adjournment in the present appeal on the said day on the premise that he has been recently engaged. The said Mr. B.R. Sharma, Advocate was representing this very Appellant in other proceedings also between the parties. On request of Mr. B.R. Sharma, Advocate, the present appeal was adjourned to 27.04.2010. Since 27.04.2010, the Appellant is being represented through a third counsel in the present appeal before this Court. Considering, the reasons submitted by the Appellant herein with respect to the non-filing of the certified copy, it is impossible that not even a single counsel who represented the Appellant since inception did not advise the Appellant to file the certified copy of the impugned order which is apparently mandatory requirement for preferring an appeal. It is submitted that this Court in catena of judgments has held that the standards of testing bona fides of the Appellant have to be more strict where mandatory documents are required to be filed with the memorandum of appeal and it is a mandatory requirement of law that the appeal should be accompanied by certified copy of the impugned judgment and that too with proper court fees. It is further submitted that an Appeal filed without the certified copy of the impugned order cannot be treated as Appeal at all in the eyes of law. In the present case, since 2008, the Appellant has failed to file the certified copy of the impugned judgment and order dated 30.10.2008, therefore, in these circumstances the Appeal of the Appellant is barred by limitation by about eight hundred (800) days and hence the same is liable to be dismissed. 6. Arguments were heard on the aforesaid application in addition to the factual controversy raised by the Respondent in his reply to the application seeking condonation of delay of 15 days only. 6. Arguments were heard on the aforesaid application in addition to the factual controversy raised by the Respondent in his reply to the application seeking condonation of delay of 15 days only. The learned Counsel appearing for the Appellant submits that in this case, the appeal was filed by the Appellant on 12.12.2008 against the impugned judgment and order dated 13.10.2008 passed by the learned ADJ. Certified copy of the judgment and order of the lower court was not annexed along with the appeal. Only an application was filed by the Appellant seeking exemption from filing of the certified copy wherein the Appellants made the following averments: Application Under Section 151 Of The Code of Civil Procedure, 1908 For Seeking Exemption From Filing Certified/Typed/Better Copies Of Dim Annexures To The Appeal. 1. That the Appellant has preferred an petition under Section 96 read with Order XLI Rule 1, Code of Civil Procedure, 1908 and Section 299, Indian Succession Act, 1925. The contents of the accompanying appeal are not being reproduced herein for the sake of brevity. The same, may however, be read as an integral part of the present application. 2. That along with aforesaid appeal the Appellant has appended various annexure's and the counsel for the Appellant has received instructions that the Appellant has filed for certified copies and undertakes to file the same in the event so directed by this Hon'ble Court. PRAYER In these facts and circumstances of the case, it is most respectfully prayed before this Hon'ble Court that it may graciously be pleased to: (a) Exempt from filing certified/typed/better copies of the dim Annexures to the appeal; and (b) Pass any other or further order(s) which may be just, fair and equitable. 7. It is thus, submitted that in the said application, the reason for praying exemption was that the Appellant had filed application for certified copies and he also undertook to file the same in the event so directed by this Court. 8. It may be observed here that no order for grant of exemption was passed by this Court. In fact, the appeal is still at the stage of hearing arguments on the maintainability in terms of the order dated 28.04.2009. 9. 8. It may be observed here that no order for grant of exemption was passed by this Court. In fact, the appeal is still at the stage of hearing arguments on the maintainability in terms of the order dated 28.04.2009. 9. The Respondent submits that filing of the exemption application is based upon a false plea in asmuch as a perusal of the certified copy filed by the Appellant shows that the certified copy was very much available with the Appellant as on the date of the filing of the appeal. This is apparent from a reading of the certified copy placed on record by the Appellant inasmuch as, the certified copy of the said judgment was applied by the Appellant on 16.10.2008, copy was ready on 31.10.2008 and in fact it was collected before the filing of the appeal which as stated above has been filed only on 12.12.2008. It is, thus, submitted that not only the averments made in the exemption application are false but even the appeal filed by the Appellant without filing the same along with the certified copy is not in accordance with the provision of Order XLI Rule 1 Code of Civil Procedure which reads as under: ORDER XLI: APPEALS FROM ORIGINAL DECREES 1. xxxx (2) Contents of memorandum. The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. 10. Relying upon the judgment of this Court delivered in the case of Indira Khurana v. Prem Prakash (1997) DLT 37, it has been stated that even the negligence of the counsel to misrepresent the facts does not deserve any discretion in the matter of filing of the certified copy of the impugned order. Reference has been made to paragraph 11 of the aforesaid judgment which reads as under: (11) I have given my thoughtful consideration to this legal objection raised by the Respondent about the maintainability of this revision petition. Admittedly, as on the date of filing the petition, the Petitioner had neither applied for the copies of the impugned orders nor informed this fact to this Court at the time of filing the petition. Rather she filed an application bearing CM. Admittedly, as on the date of filing the petition, the Petitioner had neither applied for the copies of the impugned orders nor informed this fact to this Court at the time of filing the petition. Rather she filed an application bearing CM. No. 2473/96 through which she mislead this Court in believing that she had applied for the certified copies of the impugned orders and further as and when the same will be procured those would be placed on record. Had she not represented so the Registry of this Court would not have entertained the revision petition. Because of the application seeking exemption from filing certified copies that case was listed before this Court. This Court under the impression that Petitioner had applied for the certified copies allowed the exemption application subject to just exception. "Subject to just exception" does not mean that the Petitioner was not to file certified copies at all or not within time. Just exception means that the certified copy has to be filed in accordance with rule and the law on the point. Rules have been laid under the Delhi High Court Rules, Practice and Procedure. Rule 7(1) of the said Rules clearly stipulate that for filing the revision petition, certified copy of the impugned order has to be filed. This, to my mind, was in the knowledge of the counsel for the Petitioner when he applied for exemption vide application No. 2473/96. Had he not been sure about this provision of law, he would not have written in para No. 2 of the said application that Petitioner undertakes to place on record the certified copy of the impugned order as and when procured. Instead he would have written that the certified copy was not necessary. The contention of counsel for the Petitioner that there was fault of the lawyer and that Petitioner should not be punished is without substance. The arguments of negligence of counsel cannot be inferred, from the facts of this case nor such a negligence can be condemned as held by this Court in the case of Banwari Lal and Sons Pvt. Ltd. v. Union of India AIR 1973 Delhi 24, where it was held that mistake of counsel should not be a device to conceal negligence or inaction. The Courts are meant for honest litigation. By misrepresenting the facts as mentioned in para No. 2 of the application bearing CM. The Courts are meant for honest litigation. By misrepresenting the facts as mentioned in para No. 2 of the application bearing CM. No. 2478/96 the Petitioner got the exemption. The revision was allowed to be filed without any objection. For such action of the Petitioner she does not deserve any discretion. 11. Another judgment filed by the Appellant is also relevant in the facts of this case. The said judgment has been delivered by this Court in the case of Bishan Pawar v. Dayawanti 168 (2010) DLT 147. Dealing with the provisions of Order LXI Rule 1 Code of Civil Procedure which requires certified copy of the judgment to be filed along with the appeal, it has been held that even if, appeal is filed before preparation of certified copy, the exemption is not allowed for filing of the certified copy as and when it is ready. However, if the appeal is admitted without certified copy, the same is always conditional to filing of the same as and when it is ready and for which application for exemption also contains undertaking. However, when the copy was ready with the copying agency and it was not obtained after payment of necessary court fee, the Appellant having not bothered about collection of the certified copy, in such case application for condonation of delay cannot be entertained. Relevant paragraphs are paragraph 6 and 7 which reads as under: 6. It is a mandatory condition of Order 41 Rule 1 Code of Civil Procedure that a certified copy of the judgment is to be filed along with appeal. In case appeal is filed before preparation of the certified copy, an exemption is normally allowed by the Court but certified copy is to be filed as and when it is ready. The admission of the appeal without certified copy is always a conditional admission and if certified copy is not filed as and when it becomes ready and available or certified copy is not obtained and filed then it is not an appeal in the eyes of law. In the present case the Petitioner filed exemption application and an affidavit stating that certified copy was not ready despite the fact that record shows that copy was ready with the Copying Agency and it was not obtained after payment of the necessary Court fees. Thereafter, the Appellant did not bother about collection of the certified copy. In the present case the Petitioner filed exemption application and an affidavit stating that certified copy was not ready despite the fact that record shows that copy was ready with the Copying Agency and it was not obtained after payment of the necessary Court fees. Thereafter, the Appellant did not bother about collection of the certified copy. In the application for condonation of delay, the Counsel had given his personal reasons for not collecting the certified copy. These reasons given by the Counsel cannot be entertained by the Court. It is Appellant who is responsible for collection of certified copy and filing it in the Court. No reasons whatsoever were given as to why the Appellant did not collect the certified copy and filed it in the Court. 12. On the strength of the aforesaid judgment it is submitted that in this case apparently despite availability of the certified copy with the Appellant, they have not filed the same along with the appeal. They also made wrong averments in the application for exemption. In any event reliance placed upon an advice given by the advocate that certified copy shall be filed only when it is asked by the Court is erroneous and false in the teeth of the judgment delivered in the case of Indira Khurana v. Prem Prakash (Supra) and thus, would not protect the Appellant. 13. However, on behalf the Appellant it has been submitted that in this case the certified copy despite being available was not filed on the basis of advice given by the counsel who did move an application along with memorandum stating therein that exemption be granted from filing certified copies of the Annexures to the petition. It has been submitted that the Appellant was unaware of the technicalities of filing or non-filing of certified copy of the impugned order. He complied with his responsibility of applying and obtaining the certified copy of the impugned order and made available the same to the counsel. The counsel chose not to file certified copy despite being available. The bona fide of the Appellant is clear. An error on the part of the counsel ought not to non-suit the Appellant. It is also stated that on realizing error the Appellant has moved an application for condonation of delay in filing the certified copy. It is submitted that the bona fide of the Appellant is clear. The bona fide of the Appellant is clear. An error on the part of the counsel ought not to non-suit the Appellant. It is also stated that on realizing error the Appellant has moved an application for condonation of delay in filing the certified copy. It is submitted that the bona fide of the Appellant is clear. He had applied for certified copies but it was not filed under the advice of the counsel. It is submitted that in these facts, this Court has jurisdiction to condone the delay. 14. Reliance has been placed on the judgment of the Apex Court in the case of Shakuntala Devi Jain v. Kuntal Kumari and Ors. AIR 1969 SC 575 . The Appellant has also filed other judgments. One of the aforesaid judgments is the judgment delivered by the Apex Court in the case of N. Balakrishnan v. M. Krishnamurthy decided on 03.09.1998. In this case, the facts were as under: A suit for declaration of title and ancillary reliefs filed by the Respondent was decreed ex-parte on 28.10.1991. Appellant, who was Defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was dismissed for default on 17.02.1993. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation which can be summarized thus: Appellant engaged an advocate (one Sri M.S. Rajith) for making the motion to set the ex-parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17.2.1993. When he got summons from the execution side on 05.07.1995 he approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter. On 04.08.1995 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate and hence rushed to the court from where he got the disquieting information that his application to set aside the ex-parte decree stood dismissed for default as early as 17.2.1993 and that nothing was done in the court thereafter on his behalf. He also learned that his advocate has left the profession and joined as legal assistant of M/s. Maxworth Orcheads India Limited. Hence he filed the present application for having the order dated 17.2.1993 set aside. 4. Appellant did not stop with filing the aforesaid application. He also moved the District Consumer Disputes Redressal Forum, Madras North ventilating his grievance and claiming a compensation of rupees one lakh as against his erstwhile advocate. The said forum passed final order directing the said advocate to pay a compensation of Rs. Fifty thousand to the Appellant besides a cost of Rs. Five Hundred. 15. Even in such a case on an application filed by the Appellant for condonation of delay, the Apex Court has observed as under: 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but-seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of West Bengal v. The Administrator, Howrah Municipality (1972) 2 SCR 874 . 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. 14. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. 14. In this case explanation for the delay set up by the Appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the Respondent must be compensated particularly because the Appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that Appellant shall pay a sum of Rupee Ten thousand to the Respondent (or deposit it in this Court) within one month from this date. 16. In the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma (Dead) By L.Rs. and Ors. (Civil Appeal No. 4440/2008) it has been observed that: 8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows: (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner; depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased Respondent when the appeal abates, it will not punish an Appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. 17. In view of the aforesaid circumstances, when it is apparent that the application for exemption was filed by the Appellant under the legal advice wrongly given that the certified copy will be required to be filed only when the Court will ask, the Appellant having filed the appeal within limitation along with a copy of the judgment and having also filed an application for exemption, it would not be appropriate to allow him to suffer on the basis of wrong advice given by his counsel. In any case, now a certified copy has also been filed which was prepared in time though filed later, it would, therefore, be not appropriate to non-suit the Appellant inasmuch as, the appeal itself has reached at the stage of arguments and if the same is dismissed only on technical ground, it would be contrary to the rule of law and the judgments of the Apex court as cited above. Accordingly, the application is allowed. 18. However, the Respondent can be compensated with costs, which is fixed at Rs. 25,000/- to be paid by the Appellant to the Respondent. FAO 430/2008 List on 07.03.2011 for hearing as well as for payment of costs to the Respondent.