Ripu Daman Malik vs Delhi Admn. and Others

V.K. Shali, J.

CM 3804/2012 (u/S. 5 and 14 of the Limitation Act)

This is an application seeking condonation of 1427 days delay in filing the regular second appeal. I have heard the learned Counsel for the parties and gone through the record.

The main contention of the learned Counsel for the appellant is that she was pursuing the remedy of Civil Miscellaneous Main bearing No. 418/2008 against the rejection of their appeal on 5.1.2012. It is urged that Hon''ble Judge had observed that the impugned judgment which was assailed before the High Court constitutes a decree within the definition of Section 2(2) of the CPC, therefore, only a second appeal was permissible. Accordingly, the said petition bearing C.M. (M) No. 418/2008 was dismissed as withdrawn and the second appeal has been filed.

It has been stated by the learned Counsel that the delay in filing the regular second appeal has occurred on account of unintentional mistake on the part of the appellant and ''sufficient cause'' has been shown in the delay application. Therefore, the delay in filing the present regular second appeal must be condoned.

The learned Counsel for the respondent has vehemently opposed the condonation of delay application.

I have considered the submissions made by the learned Counsel for the parties and gone through the record.

In order to appreciate the submissions, brief facts of the case are required to be given. The present appellant filed a suit for mandatory injunction against the respondents claiming that she was a purchaser of a parcel of land bearing plot No. 91 comprising Khasra No. 556 situated in the revenue and state of Village Sultanpur Majra, Delhi, measuring 200 square yards, which was purported to have been acquired by the respondent/DDA.

She filed a suit bearing No. 1647/93 which was dismissed by the trial Court on 23.1.2007 and it was claimed that she was entitled to an alternative plot in terms of the policy of Govt, of Delhi.

The appellant feeling aggrieved, preferred an appeal bearing RCA No. 8/2007, which was also dismissed by the learned ADJ on 12.12.2007.

Still feeling dissatisfied, the appellant had filed a petition bearing CM(M) No. 418/2008 which was also dismissed as withdrawn on 5.1.2012 as the Court had observed that the said petition was not maintainable on account of dismissal of their appeal and the suit by the trial Court, mentioned above, constituting passing of a decree.

There is no doubt about the fact that the law regarding the condonation of delay has been construed by the Apex Court in a most pragmatic manner. The only point to be seen is not the quantum of delay but the bona fides of the person who has occasioned the delay. Nevertheless, there must be averments made in the application seeking condonation of delay.

Section 5 of the Limitation Act talks about the condonation of delay on account of ''sufficient cause''. ''Sufficient cause'' has been construed by the Court as a ''cause'' which is beyond his control. As against this, u/s 14, the appellant/applicant must show her bona fides pursuing a remedy in a forum which, on account of lack of jurisdiction, was unable to give any requisite relief sought by the appellant. The bona fides of a person would entail that he must exercise with due care and attention.

In the instant case, there is no dispute about the fact that the appellant was being represented by a Counsel and his suit as well as the appeal having been dismissed should have been vigilant to know what remedy is to be pursued. Even the application which has been filed by the appellant does not show that the ingredients of Section 14 of the Limitation Act are pleaded by the applicant/appellant.

Invocation of Section 14 of the Limitation Act must show that the appellant/applicant has bona fides, i.e., with due care and attention, chosen a Forum to file his appeal or application which could not give relief for want of jurisdiction.

So far as invocation of Section 14 of the Limitation Act is concerned, the application is completely silent on the same and, therefore, it cannot be construed by any implication that the appellant was bona fide in pursuing a remedy in a wrong Forum. In a case u/s 5 of the Limitation Act, the use of the word ''sufficient cause'' is not good enough and the appellant must explain the circumstances which occasioned such a delay. Simply by pleading that delay was occasioned on account of the aforesaid reasons, is not adequate.

I am not satisfied with the explanation given by the appellant in the application for condonation of delay. Therefore, I feel that it will be wrong to put premium on the gross negligence on the part of the appellant by condoning the delay.

The application is, accordingly, dismissed. Since the delay application is dismissed, the appeal itself stands dismissed.