Salim vs Sanjay Garg

Neena Bansal Krishna, J

This Regular Second Appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908 (CPC), assailing the Order dated 17.10.2025, passed by the Ld. District Judge-11, Delhi, First Appellate Court, whereby the Appeal filed by the Appellant/Defendant herein was dismissed on the ground of limitation, and the decree dated 18.03.2025 passed by the Ld. Civil Judge-06, Delhi, in favour of the Plaintiff/ Respondent for possession, recovery of arrears of rent, and mesne profits was upheld.

The Plaintiff/Respondent filed a CS SCJ No. 99731/2016 for Possession of the suit property, arrears of Rent (claimed at Rs. 66,000/-), along  with  pendente  lite  and  future  interest,  mesne  profits  and  costs  before the Ld. Civil Judge (Central), Delhi.

The brief facts, as narrated in the Plaint are that the Appellant/ Defendant,  namely  Salim,  was  inducted  as  a tenant  in  the  property  bearing Khasra No. 136/9/2, Bhaya Lane, Lal Dora Village, Near Shyam Properties, Sant Nagar, Burari, Delhi-110084, (hereinafter referred to as “Suit Property”), by the Respondent/Plaintiff, namely, Sanjay Garg, at a monthly rent of Rs. 5,500/- excluding electricity and water charges.

The Defendant/Appellant, defaulted in payment of rent with effect from  01.08.2014.  Despite  service  of  demand  Notices,  the  Defendant  failed to  clear  the outstanding dues.  The  tenancy was  thereafter,  terminated  w.e.f. 31.07.2015, by Legal Notice dated 22.06.2015; however, the Defendant neither vacated the suit premises nor paid the arrears of rent.

It is further stated the Defendant had earlier entered into an Agreement to Sell with the Plaintiff, but he failed to pay the balance amount within the agreed period i.e. on or before 15.05.2015, as alleged in the plaint.

The Plaintiff/Respondent thus, instituted the Suit for Possession, arrears of rent and mesne profits.

The Appellant/Defendant, in his Written Statement, while not disputing the initial tenancy, set up a defence that he had entered into an Agreement to Sell dated 07.08.2014, to purchase the suit property from the Plaintiff, for the total sale consideration of Rs. 12,00,000/-, out of which the Appellant/Defendant had paid Rs. 5,00,000 towards advance/earnest money. The sale deed and other relevant documents, were to be executed by the Plaintiff/Respondent upon receipt of the balance sale consideration of Rs. 7,00,000/-.

The  Appellant  contended  that  pursuant  to  the  Agreement to  Sell,  he further paid a sum of Rs. 6,00,000/- on 08.09.2014, through one Ms. Bhani. He  thus,  asserted  that  he  paid a  total  amount  of  Rs.  11,00,000/-  out  of  the agreed Rs. 12,00,000/-.

The Appellant/Defendant claimed that he remained present at the office of the Sub-Registrar, on the cut-off date i.e. 15.09.2014 with the balance amount,  but  the Respondent failed to turn up, to execute the Sale Deed; instead, he issued a false and frivolous Notice dated 25.05.2015. It was contended that the Defendant was not liable to make any further payment.

The Appellant/Defendant defended his possession by claiming that his status has evolved from that of a tenant to a prospective buyer in possession, and  that  he  was in possession of the Suit Property in  his own right thereof, under the part performance. He claimed that the suit of the Plaintiff/Respondent was devoid of merit.

From the pleadings of the parties, the Ld. Civil Judge framed the following Issues:

Issue No. 1: Whether the plaintiff is entitled to recovery of possession? OPP.

Issue No. 2: Whether the plaintiff is entitled to mesne profits? OPP.

Issue No. 3: Whether the plaintiff is entitled to recovery of Rs. 66,000/- with interest? OPP.

Issue No. 4: Whether the suit has not been properly valued? OPD.

Issue No. 5: Whether the plaintiff has no cause of action? OPD.

Issue No. 6: Whether the plaintiff  has not approached the Court with clean hands? OPD.

Issue No. 7: Relief.

The  Plaintiff/Respondent, in  support  of  his  case,  examined  himself as  PW-1,  and  deposed  about his  case  and proved  the  title  documents, legal Notices and postal receipts as Ex. PW1/1 to Ex. PW1/6.

The Appellant/Defendant however, failed to lead defence evidence despite being granted multiple opportunities. Consequently, the Appellant’s right to lead Defense Evidence was closed by the Ld. Civil Judge, vide Order dated 07.04.2022.

The Ld.  Civil  Judge  on  the  basis  of  the un-rebutted evidence  of  the Plaintiff, and failure of the Defendant to prove his defence, held that the plea of  part  performance  under  the Agreement  to Sell was  not  established, and decreed the Suit vide Judgment dated 13.02.2025 and Decree dated 18.03.2025.

Aggrieved by the Decree, the Appellant preferred a Regular Civil Appeal No. DJ No. 118/2025 along with the Application under Section 5 of the Limitation Act for condonation of Delay  in filing the Appeal, before the Ld. District Judge, on 30.07.2025.

The Appellant stated in the condonation Application that the certified copy of the Judgment had been applied for by the Appellant on 17.02.2025 which was received on 27.02.2025. The Decree Sheet had not been prepared in time, which was subsequently drawn on 18.03.2025. The certified copy  of the Decree was subsequently  applied for on 17.05.2025, and was thereafter, received on 27.05.2025. Therefore, the Appeal could not be filed within the prescribed period of limitation. The delay in filing the Appeal, occurred on account of non-availability of the Decree.

The Appellant had further averred that the Appeal was filed on 13.06.2025, but remained under objections, which got finally cleared and the Appeal was lastly filed on 30.07.2025. The Appellant has however, not disclosed  the  exact  period  of  delay  in  the  Application  seeking  condonation of delay.

The Respondent/Plaintiff in his Reply to the aforesaid Application under Section 5 of the Limitation Act, asserted that the Appellant is a habitual defaulter who has been enjoying the Suit Property without payment of rent, and that until the Appellant clears the up-to-date arrears of rent, he ought not to be heard on the Application.

It was further submitted that no“sufficient cause”has been shown in the Application in terms of the Order XLI Rule 1 CPC (as amended on 01.07.2022).  Moreover,  the  Appeal  can  be  filed  against  the  Judgment  itself and there was no requirement of the Decree sheet.

It was further pointed out that the date on which the Appellant had received the Decree sheet, has been left blank in the Application. No cogent reason has been furnished for condonation of delay. The Application is vague,  as  it  does  not  disclose  the  date  on  which  the  certified  copies  of  the judgment and decree were applied for nor the date of their receipt. The date on which the Appeal was drafted and filed, has also not been specified.

Pertinently, the period of delay has also not been mentioned in the Application. It was thus, submitted that the Application, being vague and frivolous and a waste of judicial time, deserves to be dismissed.

The Appellate Court/ Ld. District Judge, noted material inconsistencies in the explanation given by the Appellant. The record, including the endorsement of the copying agency, revealed that the Application for certified copies of the  Judgment  as well as the Decree, was in  fact  made  only  on  17.05.2025  i.e.,  well  beyond  the  prescribed  period  of limitation  of  30  days.  The  certified  copy was  then  prepared  on  23.05.2025, contrary to  the  stand  taken  by the  Appellant.  The  explanation  furnished  for such delay, was neither consistent nor satisfactory.

The Ld. District Judge held that the period of limitation of 30 days would commence from the date of the Decree, i.e., 18.03.2025, and not from the date of Receipt of the certified copy.

It was further stated that even if the period from 17.05.2025 to 27.05.2025, spent in obtaining certified copies, was excluded, the Appeal would still remain barred by  limitation. Thus, as computed  by the Court, there was  a delay of approximately 132 days from  the date of  Decree and 167 days from the date of judgment.

Ld. District Judge further observed that though the Appellant had asserted that the Appeal was filed on 13.06.2025, but remained under objections; however, no material was placed on record to substantiate the nature of objections or the steps taken for their timely removal.

Upon consideration of the material on record, the Appellate Court/District Judge concluded that no “sufficient cause” had been made out by the Appellant for condonation of delay, under Section 5 of the Limitation  Act.  Accordingly,  the  Application  for  condonation  of  delay was dismissed, and the Appeal was also dismissed, as being barred by limitation.

The Appellant has assailed the Impugned Order by way of the present Regular Second Appeal, on the grounds that he is an illiterate person and was entirely dependent on his previous counsel. He alleged that his counsel  failed  to  inform  him  about  the  passing  of  the  judgment/decree  and did  not  take  necessary steps  to  file  the  Appeal  in  time.  He  claimed  to  have acquired knowledge of the Decree, only when the bailiff visited the property for Execution.

It  was  stated  that  the  Courts  must  adopt  a  justice-oriented  approach. The technical considerations of limitation, should not trump substantive justice, especially when the Appellant claimed  to have paid Rs. 11,00,000/- towards the purchase of the property.

The  Appellant  further  submitted  that  the  First  Appellate  Court  acted perversely in strictly calculating the days of delay, without appreciating  the bona  fide  circumstances  of  an  illiterate  litigant,  who  was  wholly dependent upon his previous counsel.

The Appellant has also submitted that the two Courts failed to consider  his  defence  based  on  the  Agreement  to  Sell  dated  07.08.2014  and the alleged payment of ₹11,00,000/-, and that he was deprived of a fair opportunity to lead evidence, due to the negligence of his counsel. It is contended that the findings in the two Judgements, being based solely on the uncorroborated testimony of PW-1, suffer from material irregularity and are liable to be set aside.

Per contra, the Ld.  Counsel for the Respondent submitted that the Law of Limitation, is founded on Public Policy. The delay in this case is of over 130 days beyond the limitation period, is significant and unexplained. 32. The  Respondent  stated  that  the  Appellant  applied  for  certified copies of the Trial Court judgment only on 17.05.2025, which was already months after the decree. This demonstrates a lack of diligence on the part of the Appellant personally, which cannot be shifted solely to the counsel.

A valuable right has accrued in favour of the Respondent-Decree Holder due to the lapse of time, which should not be disturbed lightly  on vague allegations against a previous counsel.

Submissions heard and record perused.

The primary issue before this Court is whether the First Appellate Court committed a patent illegality or an error of law, in refusing to condone the delay.

Order  XLI  Rule  3A  CPC read  with  Section  5  of  the  Limitation  Act, 1963, provides for filing an Application for condonation of delay in preferring an Appeal. It stipulates that where an Appeal is presented beyond the prescribed period of limitation, it must be accompanied by an Application supported by  an affidavit,  setting forth  the facts  on which  the Appellant relies to satisfy the Court, that he had sufficient cause for not preferring the appeal within such period.

Therefore, the primary consideration is whether any “sufficient cause” has been disclosed for the delay in filing the Appeal. It is well settled that procedural rules are handmaid to justice, and a hyper-technical or pedantic approach in interpreting such provisions, should not result in failure of justice.

At the same time, the underlying purpose of the Limitation Act, 1963 is  to  prevent  stale  claims  from being  agitated  and  thereby,  unsettling  rights which may have accrued in favour of a party, cannot be ignored.

The  law  of  limitation  thus,  seeks  to  strike  a balance;  on  one  hand,  it preserves  the  equitable  right  of  the  defendant  to  agitate  his  defence  before the Court in order to secure justice; and on the other, it safeguards the right that accrues to the decree-holder upon expiry of the prescribed limitation period, which ought not to be lightly disturbed.

This principle has been underscored by the Hon’ble Supreme Court in Ram Lal, Motilal and Chhotelal v. Rewa Coalfields Ltd, AIR 1962 SC 361, wherein the Apex Court held that once the period of limitation expires, a right accrues to the decree-holder and that right should not be light-heartedly disturbed.

In the present case, the Appellant in his Application for Condonation of Delay, as rightly pointed out by the Respondent, has not disclosed the number of days of delay in moving the Application.

The  Appellate Court recorded that the  Appellant  had asserted  that he applied  for  a  certified  copy  of  the  Judgment  on  17.02.2025  and  received  it on 27.02.2025. It was further his case that the decree sheet in the  Suit, was subsequently  prepared on  18.03.2025,  and that he thereafter,  applied for a certified copy of the decree on 17.05.2025, which was received on 27.05.2025.

However, as rightly observed by the Appellate Court, the record reveals that the certified copies of both, the Judgment as well as the Decree, were applied for only on 17.05.2025. No Application was filed on 17.02.2025, contrary to the Appellant’s claim.

The first aspect that emerges, therefore, is that while the Appellant seeks the Court’s discretion in his favour, he has failed to disclose true and correct  facts.  His  claim  of  having  applied  for  the  judgment  in  February,  is belied  by  the  record,  which  shows that  the  Application  was  made  only  on 17.05.2025.

Pertinently, by  the date on which the Application for certified copy was made, the limitation period of 30 days for filing the Appeal had already expired. The Application for certified copies itself, was filed beyond the prescribed  period  of limitation,  and no  explanation  for such  delay has  been disclosed therein.

The Explanation offered is confined to non-preparation of the Decree and lack of knowledge thereof. Though a plea of negligence of counsel has been faintly raised in the grounds, the same is neither pleaded in the Application nor substantiated by any material.

The Supreme Court in the case of Salil Dutta vs. T.M. and M.C. Private Limited (1993) 2 SCC 185, held that the rule that a party should not suffer for the counsels’ misdemeanor, is not absolute. If the party acts with utter negligence and fails to follow up the case, they cannot hide behind the Advocate’s inaction.

In the present case, the Appellant has failed to show that he diligently pursued the matter with his advocate or that the delay occurred solely due to the advocate’s conduct.

It was further contended on behalf of the Appellant that there was violation  of  the  principles  of  natural  justice,  as  he  was  not  given  sufficient opportunity  during the trial proceedings.  However, the record reflects that multiple opportunities were granted to the Appellant to lead evidence despite which no evidence was led before the learned Trial Court, before closure of his evidence in 2022. The closure of the Appellant’s evidence was a consequence of repeated defaults and not a denial of opportunity. The plea of violation of natural justice is, therefore, without basis.

This  indicates  that  the  delay  in  filing  the  Appeal  was  not  an  isolated instance, but part of a continued lack of diligence on the part of the Appellant, and no sufficient cause for condonation of delay, is made out.

The contention that the delay ought to have been condoned in the interest of substantial justice, also cannot be accepted in the absence of sufficient cause. The Appellant asserts that he had entered into Agreement to Sell and paid Rs.11,00,000 out of the total sale consideration of Rs.12,00,000.  However,  this  gave  an  independent  right  to  the  Appellant  to seek Specific Performance, but it did not alter his status of a tenant, till the Sale Deed got executed. His independent right was not circumscribed by the Suit filed by the Respondent.

Therefore, he cannot agitate his substantive rights were defeated. While  a  liberal  approach  is  warranted,  it  cannot  extend  to  condoning  gross and unexplained negligence. Equity acts in aid of the vigilant, not the indolent.

The observations of the learned Appellate Court are based on objective assessment of the record and cannot be said to be arbitrary or unreasonable, in exercising its discretion of Condonation of Delay. The Application for condonation of delay in filing the first Appeal, has been rightly rejected by the learned District Judge.

Conclusion:

There is no merit in the present Appeal in challenging the Order denying the condonation of delay and, therefore, no ground for interference in the Order of the learned Appellate Court is made out.

In view of the foregoing analysis, it is held that the Ld. First Appellate Court  has rightly  exercised  its  discretion  in  dismissing  the Application  for condonation of delay, as the Appellant failed to demonstrate ‘sufficient cause’ for the delay of over four months. The impugned Order dated 17.10.2025 of ld. District Judge, is upheld.

No substantial question of law arises for consideration in this Appeal.

Accordingly, the Second Appeal is hereby, dismissed.

Pending Applications, if any, accordingly, stand disposed of.