Mrs. Madhu Saxena vs Delhi Development Authority

Indermeet Kaur, J.—The order impugned before this Court is the order dated 04.03.2011 vide which the application filed by the Petitioner u/s 5 of the Limitation Act seeking condonation of delay in filing the appeal before the first appellate Court had been dismissed. There was a delay of 200 days. Delay had not been condoned.

Record shows that the present suit has been filed by the Petitioner for declaration and injunction. The contesting Respondent is the DDA. This suit had been dismissed in default on 02.08.2008 for non-prosecution. Application under Order 9 Rule 9 of the CPC (hereinafter referred to as the ''Code'') had been filed on 20.11.2008 i.e. after a delay of 80 days. This application was dismissed on 23.02.2010; suit accordingly stood dismissed. The appeal was filed before the first appellate Court; the appeal was delayed by a period of 200 days; along with this appeal, an application u/s 5 of the Limitation Act had been filed. The impugned order had refused to condone the delay. The averments made in the application u/s 5 of the Limitation Act filed before the first appellate Court are relevant. The explanation tendered in not filing the appeal in time is contained in paras 3 to 5. Contention is that the Petitioner could not contact her counsel for a long time as he was out of station; when she contacted her counsel she was told that a certified copy of the order has to be applied for which was made available in April, 2010; thereafter the Petitioner could not contact her counsel for a long period because of illness of her husband who had undergone bypass surgery twice; the Petitioner was depressed and lost track of the case. The impugned order has noted that no record about the medical condition of the husband of the Petitioner has been placed on record. The impugned order had also correctly appreciated that although the principle contained in Section 5 of the Limitation Act has to be construed liberally and substantial justice should be advanced but at the same time the Court must keep in mind that the litigant before the Court is bonafide and no negligence or inaction is imputable to him.

Record clearly speaks otherwise. It is not only at the initial stage at the time when the suit had been dismissed in default that the Plaintiff was negligent and inactive; this conduct of the Petitioner continued even upto the appellate stage. There was no plausible explanation furnished by him for seeking condonation of delay of 200 days in filing the appeal against the order dismissing his suit under Order 9 Rule 9 of the Code. The impugned order suffers from no illegality; it calls for no interference.

Dismissed.