Govt. of NCT of Delhi and Others vs Rajeev Mehra

Valmiki J Mehta, J.—Learned Counsel for the Respondent at the outset has submitted that the delay in filing of the appeal condoned by order dated 3.2.2011 in CM No. 2332/2011 be recalled on his oral prayer inasmuch as liberty was given to the Respondent to apply for variation. I have therefore heard the arguments of the learned Counsel for the Respondent on the issue of condonation of delay. The learned Counsel for the Respondent argues that the facts as stated in the application themselves show that there is administrative lethargy and lack of explanation with respect to the delay in filing of the appeal. I note that in this case the appeal ought to have been filed by 1st week of July, 2010, however, the same was filed only on 20.1.2011. There is therefore a delay of about 6 months in filing of the appeal. Learned Counsel for the Respondent has relied upon State of Bihar and Another Vs. Puran Chandra Mahto, to argue that delay should not be condoned merely because the appeal is filed by a Government Department and red tapism cannot mean that there is a right for condonation of delay. Of course, there is no dispute to this proposition, however, condonation of delay with respect to each case has to be seen in the facts of each individual case coupled with the fact that to a Government department an extra lee-way is to be granted-vide the decisions of the Supreme Court in State of Nagaland Vs. Lipok AO and Others, and State (NCT of Delhi) Vs. Ahmed Jaan, . In the present case, one of the issues is unjustified loss of public monies/revenue because decree is passed for monies in favour of the Respondent/Plaintiff with respect to work which was not performed under the contracts. In case, the money decree is sustained, there would be loss of public monies of over 5 lakhs of rupees. In the interest of justice, I therefore condone the delay subject to payment of costs of Rs. 15,000/-. Let the appeal be now heard on merits.

RFA No. 77/2011 & CM No. 2333/2011(Order 41 Rule 27 CPC)

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908(CPC) is to the impugned judgment and decree dated 25.3.2010 whereby the suit of the Plaintiff for recovery has been decreed on account of monies which were claimed by the Respondent/Plaintiff for having executed the job of painting of walls in hospitals, family welfare centres and dispensaries in Delhi.

Before the Trial Court, the Appellants/Defendants contended that instead of the work of 2,50,000/- square ft. of painting, only 10 to 15% of the work was executed. Therefore a committee was constituted in the year 1995 and accordingly a report was made on 30th March, 1995 which found that only 10-15% of the work was done. Before the Trial Court, the Appellants/Defendants failed to file this report and therefore the suit of the Respondent/Plaintiff was decreed. I am constrained to note that the conduct of the concerned officials of the Appellants leave a lot to be desired. Firstly, there were certain certificates filed by the Respondent/Plaintiff claiming that work was done and which were passed by no less than the Deputy Director which was however negated by the report of the Committee stating that barely 10 to 15% of the work was done. Not only this even after taking up a stand that there existed a Committee Report dated 30th March, 1995, that report was not filed in the Trial Court leading to the suit of the Respondent/Plaintiff being decreed. It is only in appeal now that an application is filed under Order 41 Rule 27 CPC for bringing on record this document dated 30th March, 1995. In fact this appeal itself was filed with a delay of about 6 months and which has been condoned by me subject to costs. The aforesaid facts create a sense of uneasiness that possibly there seems to be somehow or the other an endeavour of certain officials of the Appellants to help the Respondent/Plaintiff. However, this Court is guided only and only by the interest of justice and loss of public revenues. To this end, Order 41 Rule 27 CPC prescribes that the Court can sue moto seek additional evidence in the interest of justice and to clarify the facts which are otherwise stated on record. The factor of the report dated 30.3.1995 existing is stated in the pleadings by the Appellants/Defendants in the Trial Court, which report, is already stated, was not filed and exhibited in the Trial Court.

Accordingly, I allow the application under Order 41(27) CPC with further costs of Rs. 25,000/- payable to the Respondent for the delays which will be caused in further trial of the case. The Head of the Department of Health and Family Welfare of the Government of National Capital Territory of Delhi is at liberty to deduct costs as granted by today''s order from the salaries of the concerned officials who may be guilty of lapses resulting in the present situation.

Accordingly, this appeal is disposed of by remanding the same by allowing of the CM No. 2333/2011 and allowing the Appellants/Defendants to file on record the Committee Report dated 30.3.1995 and lead such evidence so as to prove the contents of the report dated 30th March, 1995. Parties to appear before the Trial Court on 20.4.2011. The Respondent/Plaintiff is free to raise all such pleas and objections as available in law by leading its further evidence including of cross-examination of the witnesses who would prove the report dated 30th March, 1995. The appeal is disposed of accordingly.