Estate Officer, HUDA and Another vs Sushil Kumar and Another

L.N. Mittal, J.—Defendants-Estate Officer and Haryana Urban Development Authority (HUDA) through Chief Administrator have filed this revision petition under Article 227 of the Constitution of India, assailing order dated 14.08.2008 Annexure P-2 passed by the lower appellate Court, thereby dismissing application filed by the petitioners for condonation of delay of 57 days in filing the first appeal and consequently also dismissing the first appeal itself. I have heard learned counsel for the parties and perused the case file.

The defendants were proceeded against ex parte in the trial Court on 24.03.2006. The suit was then decreed ex parte vide judgment and decree dated 28.08.2007 Annexure P-1 by the trial Court. Defendants filed first appeal, against said judgment and decree of the trial Court and along with appeal, moved application Annexure R-1 for condonation of delay of 57 days in filing the appeal. It was alleged that HUDA is Government Authority. The petitioners learnt about the judgment and decree of trial Court on 24.10.2007 only and then after obtaining certified copies thereof, have filed this appeal.

Learned lower appellate Court vide impugned order dated 14.08.2008 has dismissed the said application and has consequently dismissed the appeal. Feeling aggrieved, defendants have filed this revision petition to challenge the said order.

Counsel for the petitioners contended that counsel engaged by the petitioners in the trial Court did not defend the suit and the defendants were proceeded against ex parte and they learnt of the ex parte judgment and decree on filing of execution petition and therefore, delay in filing first appeal should have been condoned.

Learned counsel for respondents, however, contended that no sufficient ground has been pleaded in the application Annexure R-1 for condonation of delay in filing the first appeal.

I have carefully considered the matter. Courts are liberal in the matter of condoning delay unless the party at fault has some mala fide intention or oblique motive. The reason for liberal approach is that the appellant by filing the appeal late does not gain anything. In the instant case, HUDA is Government Authority. Some lapses and delays take place on account of impersonal machinery of the Government and its Authorities.

The delay in the instant case was of 57 days only, which should have been condoned on payment of cots.

It may also be mentioned that the first appeal was filed under signatures of petitioner no. 1 only although appeal was filed on behalf of both the petitioners. Petitioner no. 2 is HUDA through Chief Administrator. Lower Appellate Court observed that petitioner no. 1 have had no authority to file first appeal on behalf of petitioner no. 2. However, petitioners have annexed order Annexure P-4 dated 13.09.1989 regarding delegation of powers of HUDA to various officers. In view thereof, petitioner no. 1 Estate Officer had power to file first appeal on behalf of petitioner no. 2 HUDA as well. Even otherwise, the appeal validly instituted on behalf of petitioner no. 1 could not have been dismissed on the ground that it has not been validly instituted on behalf of petitioner no. 2.

For the reasons aforesaid, I find that impugned order of the lower appellate Court suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P-2 along with consequent decree passed by the lower Appellate Court, is set aside and delay of 57 days in filing the first appeal is condoned, subject to payment of Rs. 7,500/- as costs precedent. First appeal is restored to the files of the lower appellate Court. Parties are directed to appear there on 16.08.2013. The lower appellate Court shall decide the appeal in accordance with law after payment of costs precedent for condoning the delay.