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2014 DIGILAW 1178 (DEL)

Afroz Jahan v. S. A. Naqvi

2014-04-04

VALMIKI J.MEHTA

body2014
JUDGMENT Valmiki J. Mehta, J. (Oral) C.M. No.6293/2014 (exemption) 1. Exemption allowed subject to just exceptions. C.M. stands disposed of. +RSA No.97/2014 and C.M. Nos.6238/2014 (stay), 6240/2014 (condonation of delay in filing) and 6241/2014 (condonation of delay in refiling) 2. This Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 23.4.2013. By the impugned judgment, the first appellate court has dismissed the appeal filed by the appellant/defendant/tenant by refusing to condone the delay in filing of the appeal. 3. The facts of the case are that the respondent/plaintiff/landlord filed the suit for recovery of rent of the tenanted premises being property bearing no.139A, first floor, Savitri Nagar, New Delhi-110017. The suit premises were taken on rent for residential use at a rent of Rs.11,000/- per month vide lease agreement Ex.PW1/A for 11 months pursuing from May, 2007. When the appellant/defendant/tenant vacated the suit property there were arrears of 14 months rent payable totalling to Rs.1,54,000/-. Electricity charges and water charges with respect to the tenanted premises were also not paid. The subject suit for recovery of Rs.2 lacs accordingly came to be filed against the appellant/defendant/tenant. The appellant/defendant had appeared in the suit and written statement was filed on 8.9.2009. Issues were framed by the trial court on 24.9.2010 and the case was fixed for respondent/plaintiff evidence. Respondent/plaintiff filed the affidavit by way of evidence on 7.1.2011 however neither the appellant nor her counsel appeared to cross-examine the respondent/plaintiff. The right to cross-examine was closed on 8.2.2011 and the case was adjourned to 23.3.2011 for defendant’s evidence. The appellant/defendant yet again failed to appear, and therefore the suit was thereafter decreed by the ex parte judgment dated 20.4.2011 for a sum of Rs.2 lacs with costs and interest. 4. The appellant claims to have derived knowledge of the ex parte judgment and decree on 22.3.2012 when bailiff in execution went to the premises of the appellant with the attachment warrant. Appellant pleaded the following three reasons for not appearing in the suit after filing of the written statement:- (i) Appellant’s husband had gone to Iran from 16.5.2010 to 9.6.2010 and therefore could not contact her Advocate who failed to appear on 22.5.2010. Appellant pleaded the following three reasons for not appearing in the suit after filing of the written statement:- (i) Appellant’s husband had gone to Iran from 16.5.2010 to 9.6.2010 and therefore could not contact her Advocate who failed to appear on 22.5.2010. (ii) The appellant claimed to have suffered medical complications in her pregnancy resulting in her admission to the hospital on 3.12.2010 and she suffered an abortion on 6.12.2010 and consequently in this period for the date of hearing on 13.12.2010, no one appeared for the appellant. (iii) The appellant had to frequently visit alongwith her husband to Lucknow because the mother of the her husband was seriously ill, and consequently no one could appear on behalf of the appellant. 5. In my opinion, all the reasons given by the appellant are unacceptable and malafide because there is no requirement in a civil case that the appellant except when he had to depose, must appear on every date of hearing and what was required is only that her Advocate must appear. Appellant has not given any notice to the earlier Advocate who did not appear and obviously this must be either because Advocate’s fees were not paid or for some other reason there was disagreement with the earlier Advocate. Even assuming that the Advocate only had to appear alongwith the appellant, in my opinion, there is no reason right from 8.2.2011 to 22.3.2012 i.e over one year for the appellant not to have enquired about the progress of the case or appeared in the suit. Either the appellant or her husband or surely any of her family members could always have contacted the Advocate and pursued the case. Actually, the conduct of the appellant, in my opinion, shows that the appellant having not paid the charges towards rent, electricity bills and water bills was for some or the other reasons intending to delay the progress of the suit. 6. In view of the above, the first appeal filed under Section 96 CPC was dismissed by the first appellate court as barred by limitation and holding that there was no sufficient cause to condone the delay. In view of the above discussion, the appellate court has committed no illegality in dismissing the appeal as barred by time. 7. 6. In view of the above, the first appeal filed under Section 96 CPC was dismissed by the first appellate court as barred by limitation and holding that there was no sufficient cause to condone the delay. In view of the above discussion, the appellate court has committed no illegality in dismissing the appeal as barred by time. 7. I may note that the lackadaisical attitude of the appellant continued even after passing of the impugned judgment by the first appellate court on 23.4.2013, inasmuch as, this appeal has been filed with a delay of 89 days and thereafter there is a delay of 126 days in re-filing. Therefore, there is a total delay of 215 days and which is sought to be explained in an extremely general manner by a one paragraph pleading that due to personal difficulty the earlier counsel could not file the petition which was returned and on account of some objections of the Registry. Neither the name of the earlier counsel is given and nor the so called personal difficulty is mentioned with the further fact that the objections which have been raised by the Registry are such which could have been removed easily within a week at the best, and hence there is no valid reason given for condoning the delay of 215 days in filing and re-filing the appeal. 8. In view of the above, I do not find any merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.