Bhim Sain Gupta (Since Deceased, thr Lrs.) vs DDA

V.K. Shali, J.—This is a regular second appeal filed by the appellants, who are the legal heirs of the original plaintiff Sh. Bhim Sain Gupta, against the judgment dated 17.07.2013 passed by the learned ADJ dismissing the appeal of the appellants on the ground of the same being hopelessly barred by the period of limitation as the delay of approximately 2400 days in preferring the appeal before the learned ADJ was not condoned. I have heard the learned counsel for the appellants and gone through the record.

Briefly stated, the case filed by the original plaintiff Sh. Bhim Sain Gupta before the learned Civil Judge was for a decree of possession and mandatory injunction in the year 1990 where he had alleged that he was in possession of a shop as a tenant constructed on Khasra No. 248/114/1 situated in revenue estate of Village Yusuf Sarai, Delhi and was carrying business under the name and style of M/s. Bhim Sain Gupta and Sons. It was alleged that during the course of emergency, his shop was demolished by the enforcement staff of the respondent/DDA without any valid justification and he was granted a demolition slip with an assurance that an alternative site would be allotted to him in course of time. Since no alternative site was allotted to him, he filed the suit for possession of the shop in question which incidentally was no more in existence. In the alternative, the Sh. Bhim Sain Gupta claimed that another shop be allotted to him by the respondent/DDA. The suit filed by Sh. Bhim Sain Gupta was contested by the DDA both on preliminary objection as well as on merits. On the pleadings of the parties, the following issues were framed:

Whether the plaintiff has any cause of action to file the present suit? OPP

Whether the suit is barred by limitation? OPD.

Whether the plaintiff is entitled for the recovery of possession of shop measuring 18 x 17 ft. of Khasra No. 248/114/1 of village Yusuf Sarai as prayed for? OPP.

Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.

Whether the suit is bad u/s. 80 CPC and u/s. 53B of DD Act? OPD.

Whether the suit land falling in Khasra No. 248/114/1 is acquired and the plaintiff has not right to the same? OPD.

Whether the plaintiff has no right, title or interest to the suit land in view of the para No. 2 of WS of defendant no. 3 DDA? OPD-3.

Relief.

The court dismissed the suit on merits vide order dated 01.08.2006 although prima facie on the face of it, the suit for possession ought not to have been entertained as it was filed beyond a period of 12 years in terms of Article 65 of the Limitation Act, 1963.

The appellant preferred an appeal being RCA No. 42/2013 against the dismissal of the suit vide order dated 01.08.2006 after a lapse of approximately 2400 days. The appeal of the appellant/plaintiff was accompanied with an application u/s 5 of the Limitation Act, 1963 seeking condonation of delay of approximately 2400 days in filing the appeal. The reason given for the delay by the appellants was that the suit had been filed by their father Sh. Bhim Sain Gupta, who was not keeping well from the year 2005-2007 and he expired in the year 2007 and thereafter the appellants, the legal heirs late Sh. Bhim Sain Gupta, while scanning through the documents of the deceased Sh. Bhim Sain Gupta, came across the papers of the suit and accordingly they instructed their counsel who filed the present appeal. This had caused the delay in filing the appeal.

The learned first appellate court did not accept the explanation tendered by the appellants and dismissed the application seeking condonation of delay as it did not constitute ''sufficient cause''. The said order was passed on 17.07.2013. Feeling aggrieved, the present regular second appeal has been preferred. On the face of it, the appeal does not involve any substantial question of law warranting the appeal being entertained by this court. Even otherwise, if one goes through the application seeking condonation of delay filed by the appellants before the first appellate court, it clearly shows that it had been filed in a most casual manner and no sufficient cause has been shown for not preferring the appeal in time. This is evident from the fact that the title of the application shows that it has been filed u/s 21(3) of the Central Administrative Act, 1985 r/w Section 151 CPC. I fail to understand as to how the Central Administrative Act, 1985 has been cited while as I feel that the reference was sought to be made by the appellants to the Administrative Tribunals Act, 1985. Even in para 4 of the application where reasons for not preferring the appeal for 2400 days approximately are given, only generalized statements have been made that late Sh. Bhim Sain Gupta was not well during the period 2005-2007 and later he died on 12.05.2007. No medical document in respect of late Sh. Bhim Sain Gupta was attached to the application. Even the word ''sufficient cause'' which is a ground for condoning the delay u/s 5 of the Limitation Act, 1963, has not been used in the application, which clearly shows that the application has been drafted in a most casual manner and only a feeble attempt was made by the appellants to see that the appeal is entertained after the delay of 2400 days approximately. I feel that the learned first appellate court was right in rejecting the application seeking condonation of delay. There is no question of law arising from the instant appeal. Accordingly, the same is dismissed.