Mohd. Abdul Akramuddin vs Kanti Devi (Deceased) and Others

Manmohan Singh, J.—By way of the present petition under Article 227 of the Constitution of India read with Section 151 of CPC, the

petitioner has assailed order dated 7th September, 2013 passed by the learned Addl. District Judge whereby his application for condonation of

delay of more than one year was dismissed. In the main appeal the petitioner challenged the judgment and decree dated 30th July, 2011 passed by

the learned Civil Judge against the petitioner. The brief facts are that on 25th November, 2002 the petitioner along with his five brothers purchased

the suit property bearing No. D-61, New Seelampur, Delhi admeasuring 45 sq. yards from Kusum Sharma, wife of respondent No. 6 through

registered General Power of Attorney, Agreement to Sale, Receipts etc.

Kusum Sharma, wife of respondent No. 6 handed over the vacant possession of the suit property to the petitioner and his brothers after

execution of relevant documents. The petitioner took possession of the suit property, at that time consisted of 1 room and later, divided the said

rooms to 2 rooms by a wall in between and further, constructed 2 rooms on the first floor.

On 20th August, 2004 the respondent No. 1 to 5 filed a civil suit for declaration, possession and permanent injunction against respondent No. 6

and the petitioner. The learned Trial Court passed the decree by judgment and decree dated 30th July, 2011 in favour of the respondent No. 1 to

5 as well as permanent injunction against the petitioner.

On 6th November, 2012 aggrieved by the abovesaid judgment and decree, the petitioner filed an appeal along with an application u/s 5 of the

Indian Limitation Act for seeking condonation of delay in filing of the appeal after a delay of 14 months and 5 days.

It was stated by the petitioner that his counsel did not inform about the passing of the judgment and decree. Therefore, he could not file the

appeal in time. It was also stated that he is an illiterate and not aware of law, the delay was neither intentional nor deliberate. No prejudice would

be caused to the respondents if the same is condoned. In case, it is not condoned off, the petitioner will suffer an irreparable loss.

Respondent No. 2 to 5 filed joint reply and have alleged that the application was not maintainable as the delay of each day in filing of the appeal

was not explained which is more than 14 months in filing of appeal. It was denied that the petitioner was not informed by his counsel about passing

of the judgment and decree or that he is an illiterate person or that he is not aware of the law or that he was reminding his counsel to inform him.

Respondent No. 6 also filed separate reply and stated that the petitioner last appeared before the court of Civil Judge on 20th October, 2007

and thereafter, he never contacted his counsel as per his information.

By order dated 7th September, 2013, the trial court dismissed the appeal and the application filed by the petitioner u/s 5 of the Indian Limitation

Act. The trial court observed that the impugned judgment and decree under appeal was passed on 30th July, 2011, whereas the petitioner applied

for certified copies of the impugned judgment on 30th August, 2012 and the same were received on 6th September, 2012 however, the appeal

was filed by the petitioner on 6th November, 2012. It was observed that after exclusion of period of 5 days taken by the copying agency in

preparation of certified copies of the impugned judgment and decree, there was delay of 13 months and 2 days thus, the petitioner was negligent

and his approach was lackadaisical. It was observed that the pleas taken by the petitioner was found to be self contradictory and based on

falsehood and vague.

i) In the case of Smt. Tara Wanti Vs. State of Haryana, , it held that ""the person invoking the jurisdiction of the court for condonation of delay is

required to satisfy the court that he was unable to present his appeal in time on account of some misadventure or incapacity or the circumstances

beyond of his control of such sufficient cause which bonafidely prevented him in filing the appeal within the prescribed limitation"". It also held that

sufficient cause means that cause which has prevented to the appellant to file the appeal within the statutory period"".

ii) In Balwant Singh (Dead) Vs. Jagdish Singh and Others, held that approaching to the court with clean hands, itself is a ground for rejection of the

application u/s 5 of the Indian Limitation Act. It further held that there should be a sufficient cause for condonation of delay and delay should not be

on account of dilatory tactics, want of bonafide, deliberate inaction or negligence. It also held that the liberal approach does not mean doing

injustice to the opposite party.

iii) In Collector of Central Excise, Madras Vs. A. Md. Bilal and Co., wherein the application for condonation of delay was dismissed, in view of

absence of satisfactory or cogent explanation for delay.

iv) In Deepali Sharma v. Federal Bank Ltd., RFA No. 112/2010 wherein the application for condonation of delay was dismissed in view of vague

averments, negligence, absence of sufficient cause and lackadaisical approach of the litigant in pursuing the appeal.

v) In Smt. Shiv Kumari Vs. Choudhary Prem Singh, Ch. Samai Singh, Ch. Jagat Singh and Ch. Bharat Singh wherein the application for

condonation of delay was dismissed in the absence of sufficient cause for delay.

I have heard the learned counsel appearing on behalf of the petitioner. Having gone through the entire records, pleadings and the impugned

order, particularly the reasons given in para 15 to 20, 27 and 28 in which the learned Trial Court has come to the conclusion that the petitioner has

failed to show any sufficient cause which prevented him to file an appeal for a period of 13 months and 2 days.

Further the application filed by the petitioner is based on falsehood, no interference in the impugned order is called for. The said appeal filed by

the petitioner was time barred. Thus, there is no merit in the present petition. The same is dismissed. Pending application also stands disposed of.