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2014 DIGILAW 1778 (PNJ)

HUDA v. Kawal Bedi Education Society

2014-12-19

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.: - Re: Delay In this regular second appeal, there is CM No.4180-C of 2011 under Section 5 of the Limitation Act for condonation of delay of 203 days in filing the appeal and yet another CM No.4181-C of 2011 under Section 151 CPC for condonation of 147 days delay in re-filing the appeal. Before adjudicating the matter of limitation, brief resume of the facts requires to be undertaken. 2. Suit of the plaintiff, respondent herein, filed on 3.3.2007, interalia , against HUDA, Panchkula was for seeking declaration that he being the highest bidder of land in Sector 40, Gurgaon for a total sum of Rs.35,90,000/- and having deposited a sum of Rs.3,59,000/- as 10% of the bid amount at the spot on 9.7.2001 and having complied with terms and conditions of the allotment, was wrongly not allotted the plot on the ground that it had not submitted the requisite registration certificate of the society. For forfeiture of amount of Rs.3,59,000/- deposited as earnest money, it had made representation on 16.11.2001 and when no action was taken, appeal was preferred before the Administrator, HUDA, defendant- respondent No.2. Subsequently, the suit was preferred by the plaintiff for seeking declaration that he was a lawful allottee of the plot. After hearing counsel for the parties, suit of the plaintiff was dismissed on 13.6.2008. Against the said judgment and decree, an appeal was preferred by the plaintiff on 18.9.2008. The appellate court found that when even written statement had not been furnished by the defendant in the suit, the court was to pass a decree under Order VIII Rule 10 CPC. In short, the appeal was accepted, impugned memo dated 29.10.2001 was set aside directing the defendant to allot a plot to the plaintiff in Sector 40 Gurgaon. Regular second appeal in this court against the judgment and decree dated 10.8.2009 of the first appellate court was preferred in this Court, seeking condonation of delay, as mentioned earlier. 3. Counsel for the applicant-appellants has urged that delay could not be avoided despite best efforts made in this behalf as no information could reach them through their counsel resulting in delayed filing and refiling of the accompanying appeal. 4. This claim has been contested by the respondent tooth and nail. 3. Counsel for the applicant-appellants has urged that delay could not be avoided despite best efforts made in this behalf as no information could reach them through their counsel resulting in delayed filing and refiling of the accompanying appeal. 4. This claim has been contested by the respondent tooth and nail. Whereas, Counsel for the appellants has urged that despite sincere efforts, delay emerged, Counsel for the respondent has claimed that it was avoidable delay and application for condonation of delay should be dismissed. Support has been sought from Chief Administrator, Huda v. Satpal, 2010(0) AIJ-PH 1636536, Union of India v. Nripen Sharma 2011(0) AIJEL-SC 49443, Office of the Chief Post Master General & Others v. Living Media India Ltd. & Another, 2012(1) G.L.H. 670 and Haryana Urban Development Authority and Another v. Phiraya Lal Khnduja and Others, 2010(0) AIJ-PH 1632324. 5. Counsel for the appellants, however, has urged that official procedure is lengthy and tardy which resulted in delayed filing of the appeal, otherwise no gain has been attained by the applicant-appellants by such delay. 6. Hearing has been provided to the counsel for the parties. 7. Going through the judgments cited by the respondents, it emerges that if the application for condonation of delay is dishonest and mala-fide or does not explain sufficient cause for delay, the same should not be allowed. It is also clear from the said judgments that if delay is bona-fide and beyond the expected circumstances and powers of the applicantappellants , the appellants should not suffer. 8. Perusal of the application, along with its reply, for condonation of delay in filing the appeal, reveals that though the first appellate court had passed the judgment and decree against the appellants on 10.8.2009 but in absence of any communication made or information given by counsel for the appellant, no action regarding filing of the appeal could be taken. It is also claimed that even concerned officials did not bring decision of the first appellate court to the notice of the decision making authorities as to whether appeal was to be filed or not? It has categorically been mentioned that all concerned delinquent officials have been departmentally dealt with and by the time of filing of the appeal on 28.10.2006, regular charge sheet was to be served on them. 9. It has categorically been mentioned that all concerned delinquent officials have been departmentally dealt with and by the time of filing of the appeal on 28.10.2006, regular charge sheet was to be served on them. 9. It remains a fact that it was only on 3.6.2010 that the matter of impugned judgment an decree came to the notice of the authorities and thereafter immediately after obtaining copy of the judgment and decree, the matter was referred to the head office of the HUDA for seeking opinion as to whether the appeal was to be filed or not and immediately after receipt of such opinion, the appeal was preferred. 10. The application is supported on affidavit whereas reply of the respondent is sweeping and general without any counter affidavit on this count. Similarly, delay in re-filing of 147 days has been duly supported on affidavit by the responsible officer and against it no reply has even been filed. 11. Keeping in view the totality of facts and circumstances, the counsel for the respondent has not been able to convince this Court as to what benefit has emerged to the appellants by delayed filing of the appeal and when sufficient cause has elaborately been shown in the application which is supported by an affidavit, there is no reason for denial of grant of application for delay in filing as also in re-filing. 12. When applications preferred by the appellants for filing and refiling are bona-fide and rather have disclosed each and every thing honestly and clearly without hiding anything, the same are allowed. Condoning the delay in filing as also in re-filing, the appeal is taken on board. Main case 13. Let Counsel for the appellants come up with substantial questions of law which require determination in this appeal. List the appeal for hearing on 16.1.2015. ---------0.B.S.0------------ —————————