TRILOCHAN SINGH vs SMT. DAMANPREET KAUR AND ORS
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 17th November, 2023
+ RFA 919/2023
TRILOCHAN SINGH ….. Appellant
Through: Mr. Sudhir Mandiratta, Advocate.
versus
SMT. DAMANPREET KAUR & ORS ….. Respondents
Through: None.
CORAM:
HONBLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
CM APPL. 59519/2023 (for condonation of delay)
1. This is an application for condonation of delay of 2,496 days in filing of the present Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908. The appeal is directed against a preliminary decree dated 21.07.2016 and a final decree dated 12.01.2017, passed in a partition suit.
2. The appellant was a defendant in CS No. 1207/11/2010 (N. 9789/2016), instituted by respondent Nos. 1 and 2 in this appeal. The suit was filed for partition in respect of the suit property [WZ 230, Gali No. 4, Guru Nank Nagar, M.B.S Nagar, New Delhi 110018] and for permanent injunction.
3. The impugned preliminary decree was passed on 21.07.2016, declaring that the plaintiffs were jointly entitled to 1/4th undivided share in the suit property. The matter culminated in a final decree dated 12.01.2017, directing that the suit property be sold in auction and sale proceeds be distributed amongst the parties in terms of the preliminary decree.
4. The application for condonation of delay is set out in full hereinbelow:
1. That the appellant has filed the accompanying appeal and facts of the same may kindly be read part of this application.
2. That the appellant is not legally illiterate and has never been advised to file the appeal, thus the bonafide delay in filing the appeal took place. I was bona fidely proceeding with objection petitions in Ex C & this Court.
It is, therefore, most respectfully prayed that the delay 2496 of days in filing the appeal may kindly be condone in the interest of justice.1
5. The principles governing applications for condonation of delay have been elaborated in several decisions of the Supreme Court. Whereas a generally liberal approach has been emphasised, the Court has also placed important fetters on this discretionary power. In Ramlal, Motilal and Chhotelal vs. Rewa Coalfields Ltd.2, while construing Section 5 of the Indian Limitation Act, 1908, the Supreme Court inter alia recognised that the expiration of the period of limitation for an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties, and held that this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. Similarly, in University of Delhi vs. Union of India3, the Court held that the accrued right or adverse consequence to the opposite party should be kept in perspective, and not dealt with lightly. It was further held that, if inordinate delay is condoned without considering the lackadaisical manner in which the appellant has proceeded, it would be contrary to public interest.
6. In Basawaraj vs. Land Acquisition Officer4, the Court held that although the expression sufficient cause in Section 5 of the Limitation Act, 1963 should be given a liberal interpretation, this would be subject to negligence, inaction or lack of bona fides attributable to the concerned party, and that this question can only be decided on the facts of a particular case. The Court further observed as follows:
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.
7. The judgment in Majji Sannemma vs. Reddy Sridevi5, reiterated the views taken in Ramlal, Motilal and Chhotelal 6 and Basawaraj7.
8. Appling these principles to the present case, I am of the view that the explanation offered by the appellant is entirely inadequate to explain the delay. The impugned preliminary decree was passed more than seven years ago, and the final decree was also passed almost seven years ago. The appellants only justification for the delay is that he was not advised to file an appeal. However, he seeks to rely upon his pursuit of remedies before the Executing Court and this Court in support of the application. In my view, however, these proceedings at the instance of the appellant are testament to the fact that he was in a position to obtain legal advice and assistance. It is the admitted position that he was represented by counsel in the Trial Court as well as in the Executing Court. In execution proceedings, he has filed objections, which have been rejected by the Executing Court. I am therefore not satisfied with the appellants explanation that the delay has occurred for lack of legal advice.
9. Mr. Sudhir Mandiratta, learned counsel for the appellant, states that earlier objections were also rejected by the Executing Court by an order dated 31.08.2021, and the appellant, in fact, approached this Court against those orders. He candidly states that this Court did not find any ground to interfere with the orders passed in execution proceedings. Although the order of this Court has unfortunately not been annexed to the appeal, it is available on the website of this Court8, and shows that, even at that stage, the appellants challenge to the auction proceedings were found to be belated.
10. The appellants conduct therefore does not meet the test laid down in the aforesaid judgments, to support a finding of sufficient cause for the extraordinary delay of 2496 days in filing of this appeal.
11. Further, it is stated in the appeal that the suit property has already been auctioned to a third party and sale certificate has also been issued in the course of execution proceedings. Third party rights have thus accrued in favour of bona fide purchasers in a Court auction. In these circumstances, entertainment of this appeal at this stage would tantamount to interference with the rights of the respondents to treat the decree as final and binding, and also with the rights of the bona fide third party purchaser. Such a course would not be in public interest.
12. For the aforesaid reasons, the application is dismissed.
RFA 919/2023 & CM APPL. 59517/2023, CM APPL. 59518/2023
In view of the fact that the application for condonation of delay in filing the appeal has been rejected, the appeal, alongwith all pending applications, stands disposed of.
PRATEEK JALAN, J
NOVEMBER 17, 2023
Bhupi
1 Emphasis supplied.
2 (1962) 2 SCR 762 at 767 .
3 (2020) 13 SCC 745 (paragraphs 23, 31).
4 (2013) 14 SCC 81.
5 2021 SCC OnLine SC 1260.
6 Supra (note 2).
7 Supra (note 4).
8 Order dated 21.09.2021 in CM(M) 636/2021, Trilochan Singh vs. Damanpreet Kaur & Ors.
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