MAUZI RAM THR. LR’S & ORS. vs HOSHIAR SINGH
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 2nd February, 2024
+ REVIEW PET. 284/2023 & CM APPL. 53934/2023 & CM APPL. 53935/2023 & CM APPL. 53936/2023 & CM APPL. 53937/2023
in RFA 741/2002
MAUZI RAM THR. LR’S & ORS. ….. Appellants
Through: Mr. Jayant Tripathi, Mr. Udai Bhan Singh Sehrawat and Mr. Rajul Jain, Advocates
versus
HOSHIAR SINGH ….. Respondent
Through: Mr. Pankaj Kumar Sharma, Advocate
Mr. Devender P.S.Dagar, Advocate for R-4c(ii)
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
CM APPL. No. 53935/2023 (delay in filing)
1. The instant application has been filed on behalf of the applicants/petitioners/appellants under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter CPC) seeking the following reliefs:
a. Condone the delay of 427days in filing of the present review petition and admit the same; and
b. Pass such other or further order as may be required in the facts and circumstances of the case.
2. The applicants/petitioners/appellants have filed the accompanying review petition bearing Review Petition No. 284/2023 in RFA No. 741/2002 seeking review of the impugned judgment dated 28th November, 2011, passed by the the Predecessor Bench of this Court, whereby it had upheld the preliminary decree dated 20th July, 2002 passed by the learned Trial Court in favour of the respondents.
3. The applicants/petitioners/appellants have filed the present application seeking condonation of delay of 427 days in fling the above said review petition.
4. Learned counsel appearing on behalf of the applicants/petitioners/appellants submitted that the instant application has been filed with bona fide intentions and there is sufficient cause in favour of the applicants for condonation of the delay.
5. It is submitted that the present review petition is premised on the fact that a certain document, i.e., a report of the Local Commissioner and the stand of DDA were placed on record before the learned Trial Court between the years 2015 and 2018 which ultimately states the correct factual position and prove that the observations made on the facts of the impugned judgment are completely erroneous.
6. It is submitted that in view of the aforementioned document and subsequent developments qua the subject issue, the petitioners pursued their remedy under the various legal provisions, firstly, by filing an application under Order VII Rule 11 of the CPC which came to be dismissed vide order dated 2nd March, 2019 and secondly, by filing an application for reference, under Order XLVI Rule 1 of the CPC, which was also dismissed by the learned Trial Court vide order dated 12th March, 2020.
7. It is submitted that it is apparent on the face of the record that the applicants/petitioners had never given up on its contentions regarding the true and correct factual position in respect of the acquisition of land which is the subject matter in the impugned judgment.
8. It is submitted that after the above events, in March, 2020, the functioning of the Courts came to a halt due to the COVID-19 pandemic. It is further submitted that due to the said pandemic, the Honble Supreme Court extended the limitation period from time to time. As such, the limitation for filing a review petition was available till 30th May, 2022 from the date of passing of the order dated 12th March, 2020 passed in the application under XLVI Rule 1 of the CPC, when the contentions of the petitioners were finally rejected.
9. It is submitted that after the above said chain of events, the petitioners took some time in consulting their lawyers and obtaining all the requisite documentation pertaining to the case and managing financial resources which ultimately caused the unintentional delay of 427 days from 30th May, 2022.
10. Therefore, in view of the foregoing paragraphs, it is prayed that the instant application may be allowed and the delay may be condoned.
11. Per Contra the learned counsel appearing on behalf of the non-applicants/respondents vehemently opposed the instant application and submitted that the same is liable to be dismissed being devoid of any merits
12. It is submitted that the applicants/petitioners by way of the instant application are merely abusing the process of law and have not approached this Court with bona fide intentions.
13. It is submitted that in light of the foregoing paragraphs, the delay may not be condoned and accordingly, the instant application be dismissed.
14. Heard the learned counsel appearing for the parties and perused the record.
15. It is a well settled principle of law that the legislature, under Section 5 of the Limitation Act, 1963, has conferred upon this Court, the power to condone delay in order to enable the Courts to do substantial justice to the parties by disposing of matters on merits. In the matter of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Honble Supreme Court while noting the interpretation of the expression sufficient cause observed as under:
10. It was stressed that there should not be a pedantic approach but the doctrine that is to be kept in mind is that the matter has to be dealt with in a rational commonsense pragmatic manner and cause of substantial justice deserves to be preferred over the technical considerations. It was also ruled that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and that the courts are not supposed to legalise injustice on technical grounds as it is the duty of the court to remove injustice.
***
12. In G. Ramegowda v. Land Acquisition Officer [(1988) 2 SCC 142] , Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus: (SCC pp. 147-48, para 14)
14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361 : (1962) 2 SCR 762] , Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] , Concord of India Insurance Co. Ltd. v. Nirmala Devi [(1979) 4 SCC 365 : 1979 SCC (Cri) 996 : (1979) 3 SCR 694] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : (1970) 2 SCR 90] and Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172] , etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
.
16. Perusal of the above states that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The basic idea behind the said principle is that every legal remedy must be kept alive for a particular period; however, the Courts are bestowed with the power to condone the delay, provided that a sufficient cause is shown for not availing the remedy within the stipulated time.
17. In light of the above, it can be inferred that liberal approach ought to be adopted in condoning the delay of short duration and a stricter approach where the delay is inordinate.
18. Now adverting to the facts of the instant petition.
19. The review petition is filed by the petitioners for reviewing the judgment dated 28th November, 2011 passed by the Predecessor Bench which is admittedly barred by extraordinary delay of 427 days. At this stage, this Court must ascertain whether the reasons given in the instant application for condoning the extraordinary delay in filing the instant review petition are sufficient or not. The impugned judgment was passed by the Predecessor Bench of this Court on 28th November, 2011 and the review petition was filed on 31st July, 2023, in which the period exempted by the Honble Supreme Court at the time of COVID-19 are excluded. Thereafter, 427 days delay in filing the said review petition was not explained. While condoning the delay in filing the review/appeal/petition, this Court has to carefully examine the reasons contended in the application. In the instant applicant, the reasons which have been given are as follows:
3. That however, it is pertinent to note that the present review petition is premised on the fact that certain document i.e., report of the Local Commissioners and the stand of DDA came to be placed on record before the Ld. Trial Court between 2015 and 2018 which evidence the correct factual position and prove that the observations made on facts in the impugned judgment/ order are completely erroneous.
4. That further, in view of the documents afore-mentioned, the Petitioner pursued their remedy under legal provisions by first filing an application under Order 7 Rule 11 which came to be dismissed vide order dated 02.03.2019 and thereafter an application under Order 46 Rule 1 for sending reference to this Honble Court. The Ld. Trial Court was pleased to dismiss this application vide order dated 12.03.2020.
5. That it is apparent that the Petitioner had never given up on its contentions regarding the true and correct factual position in respect of the acquisition of land and agitated the same again and again before the Ld. Trial Court at the advice of their legal counsel.
6. That in March 2020, due to the pandemic, the functioning of the courts was interrupted and under the orders of the Honble Supreme Court the limitation expiring during the period from 15.03.2020 to 28.02.2022 was extended from time to time and lastly extended for a further period of 90 days from 01.03.2022. As such, the limitation for filing a review petition was available till 30.05.2022 from the date of passing of the order on application under Order 46 Rule 1 i.e., 12.03.2020 when the contentions of the Petitioner were finally rejected.
7. That thereafter the Petitioner took some time in consulting their lawyers and obtaining all requisite documentation of the case was pending for over 2 decades and managing the financial resources which caused the unintentional delay of 427 days from 30.05.2022
20. The petitioners have submitted that they were pursuing various litigations before the learned Trial Court since some new documents and facts had come into light. Further, due to the then prevailing COVID-19 pandemic, the limitation period was extended as per which the limitation for filing the review petition was available till 30th May, 2022 from the date of passing of the order in the application under Order XLVI Rule 1 of the CPC, i.e., 12th March, 2020 when the contentions of the petitioner were finally rejected by the learned Court below.
21. The bone of contention as pleaded by the petitioner is that the new documents and subsequent developments qua the subject issue states the correct factual position and further prove that the observations made on the facts in the impugned judgment are completely erroneous. The said documents and facts which include the report of a Local Commissioner and the averments made by the DDA before the learned Court below are crucial as, upon perusal of the same, the error apparent on the face of the impugned judgment will be proved.
22. Insofar as the reasons for the delay are concerned, it is averred that the applicants/petitioners were pursuing various litigations before the learned Trial Court since some new documents and facts had come into light. It has been submitted on behalf of the petitioners that such documents and facts are necessary for the proper adjudication of the RFA No. 741/2002.
23. In light of the facts of the present case, this Court is of the view that once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that valuable right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction. Justice must be done to both parties equally, and then alone, the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
24. This Court is of the view that merely pursuing litigations before different forums of law cannot be a ground for condonation of delay unless it is shown from the records that the concerned party was pursuing the litigation before a wrong jurisdiction but under bona fide belief. In such event, due to the said bona fide mistake, the delay may be condoned. Furthermore, delay which cannot be condoned, cannot be condoned in a routine manner by the Courts. Filing of a particular petition, suit or application within the limitation is the prescribed rule and any deviation from such prescribed rule is against the nature of settled legal propositions. As per the settled law, condonation of delay is an exception and while condoning the delay, more specifically, enormous delay; the Courts have to consider the genuineness of the reasons furnished by the party, seeking condonation of delay. Only if the reasons are genuine and acceptable, only then, such a huge delay is to be condoned. Thus, the condonation of delay cannot be a routine affair. A person, who is not vigilant, is not entitled for the relief after a prolonged period.
25. It is held that the expression sufficient cause implies the presence of adequate reasons, holding weight from a legal standpoint. The applicant/petitioners in the instant application have been unable to show as to how, besides purported to have been acting bona fide, they had taken all the possible steps within its power and control and had approached this Court without any unnecessary delay. The applicants/petitioners ought to have explained explicitly the circumstances that led to delay and merely submitting that they were pursuing litigations before a different forum of law cannot be accepted as a prudent contention since prima facie the same amounts to being vague and unreasonable.
26. The petitioners/applicants have been seeking condonation of delay in order to argue the review petition. The petitioners/applicants have contended that since new facts had come into light, they were pursuing other remedies before a different forum of law. In this regard, this Court is of the considered view that such argument merely amounts to an attempt to abuse the process of law as the petitioners/applicants had sufficient opportunities to approach this Court under its review jurisdiction on an earlier occasion.
27. The present application is to be decided only within the parameters laid down by the Honble Supreme Court in regard to the condonation of delay. In case there was no sufficient cause to prevent the litigant, i.e., the petitioners/applicants, to approach this 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 tantamount to showing utter disregard to the legislature.
28. In view of the aforesaid terms, this Court does not find any merit in the present application filed for condoning the delay of 427 days in filing the captioned review petition.
29. Therefore, it is held that the petitioners/applicants have been unable to put forth any propositions to make out their case for condonation of delay and due to no sufficient and reasonable cause being shown, the same is liable to be dismissed,
30. Accordingly, the present application stands dismissed.
REVIEW PET. 284/2023
31. The instant review petition under Section 114 read with Order XLVII Rule 1 with Section 151 of the CPC has been filed on behalf of the petitioner seeking the following reliefs:
A. Admit the Review Petition and issue notice to the Respondent No.1, and;
B. To review and set aside the impugned judgment/ order dated 28.11.2011 passed in RFA No. 741/2002;
C. Award the costs of review petition in favour of the Petitioner; and
D. Any other such order/orders or relief which may be deemed fit and proper in the facts and circumstances of the case.
32. In light of the order of the even date passed in CM APPL. 53935/2023 (delay in filing), the instant review petition stands dismissed along with pending applications, if any.
33. The Order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
FEBRUARY 2, 2024
gs/ryp/ds Click here to check corrigendum, if any
REVIEW PET. 284/2023 in RFA 741/2002 Page 1 of 11