VATEENA BEGUM vs SHAMIM ZAFFAR & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of order: 9th April, 2024

+ RFA 284/2020

VATEENA BEGUM ….. Appellant
Through: Md.Azam Ansari, Advocate

versus

SHAMIM ZAFFAR & ANR. ….. Respondents
Through: Mr.Shekhar Prit Jha, Mr.S.S. Haider and Ms.Preeti Kumari, Advocates

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
CM APPL. 30152/2020 (Seeking condonation of delay in filing the appeal)

1. Learned counsel appearing on behalf of the applicant/appellant submitted that the instant application has been filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 820 days in filing the accompanied appeal.
2. It is submitted that although the impugned judgment was pronounced on 11th November, 2013, however, the same came to the knowledge of the applicant/appellant on 28th May, 2018 as she was not a party to the suit before the learned Trial Court and the same is also evident from the order of the learned Executing Court dated 29th May, 2018.
3. It is submitted that in view of the above, the limitation period would start running from 28th May, 2018 and counting from this date, there is a delay of 820 days in filing the appeal.
4. It is submitted that the above said delay occurred as the appellant was occupied in pursuing her case before the learned Executing Court by filing objections dated 5th June, 2018.
5. It is submitted that the above said objection was dismissed by the learned Executing Court on 13th August, 2020 which was also challenged before this Court on EFA No. 9/2020 in which the judgment was reserved on 19th November, 2020 on which date the present appeal was filed, and thus, the applicant/appellant was engaged in litigations prior to filing of the present appeal.
6. It is submitted that due to above stated reason, there is a delay of 820 days in filing the accompanied appeal and the same is neither intentional nor deliberate.
7. It is submitted that as per the judgment of the Hon’ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Courts have to be liberal in condoning the delay as the same is intended towards facilitating the ends of justice.
8. Therefore, in view of the foregoing submissions, it is submitted that the delay in the instant application may be condoned and the appeal may be heard on merit.
9. Per Contra, the learned counsel appearing on behalf of the non-applicants/respondents vehemently opposed the instant application submitting to the effect that the same is liable to be dismissed being devoid of any merits.
10. It is submitted that the applicant/appellant has concealed the actual facts as the delay in filing the captioned appeal is not 820 days rather the same is approximately more than seven years since the impugned judgment was passed on 11th November, 2013 and the present appeal was filed in the year 2020.
11. It is submitted that the submission of the applicant/appellant that she was not aware of the suit is incorrect and fabricated. The applicant/appellant is the unauthorized occupant of the suit property and summons of the suit was delivered and pasted at the conspicuous place of the suit property. Moreover, the notice of the suit was also published in the newspaper.
12. It is also submitted that the applicant/appellant has taken a ground in her appeal that the impugned judgment is bad in law as the suit property was in her possession. It is further submitted that due to the said reason she cannot plead before this Court that she was not aware about the proceedings before the learned Trial Court.
13. It is submitted that the reasons stated by the applicant/appellant are baseless and have been made with mala fide intentions, therefore, it is prayed that due to unreasonable and inordinate delay, there is no merit in the present application seeking condonation of delay and the captioned appeal may be dismissed being barred by limitation.
14. Heard the learned counsel appearing on behalf of the parties and perused the record.
15. It is the case of the applicant/appellant that she was not aware about the impugned judgment which was passed in the year 2013 and she got aware of the matter only in the year 2018 when she participated in the execution proceedings before the learned Executing Court. It has been submitted on behalf of the applicant/appellant that since she was occupied in pursuing litigation before the learned Executing Court, a delay of 820 days has occurred in filing the instant appeal. It has been further contended that the above said reasons amount to sufficient cause and therefore, the delay may be condoned.
16. During the course of arguments, the learned counsel appearing on behalf of the respondents whilst refuting the applicant/appellant’s case also submitted that the grounds provided by the appellant are insufficient and therefore, the delay may not be condoned on the said grounds.
17. At this juncture, this Court asked the learned counsel appearing on behalf of the appellant/applicant to file a better affidavit explaining the inordinate delay in filing the captioned appeal, however, the learned counsel pressed the instant application and prayed that the same may be decided on the basis of the grounds mentioned in the application itself.
18. The principle for condonation of delay in filing an appeal is governed by Section 5 of the Limitation Act, 1963, relevant portion of which reads as under:
“….5. Extension of prescribed period in certain cases.—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.—The fact that the appellant or the applicant was missed by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section..”

19. Perusal of the above stated provision states that the limitation period in filing an appeal or any other application may be extended if the concerned party satisfies the Court that there was a sufficient reason for the delay.
20. It is a well settled principle of law that under Section 5 of the Limitation Act, 1963, the legislature has conferred upon this Court the power to condone delay in order to enable them 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 Hon’ble 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.”….”

21. Perusal of the above extract 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.
22. 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.
23. 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 litigations before a wrong jurisdiction but under bona fide belief.
24. In such event, due to the said bona fide mistake, the delay may be condoned. Furthermore, delay without sufficient cause 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. The law with regard to the same is that the condonation of delay is an exception and while condoning the delay, more specifically, enormous delay, the Courts have to consider the credibility of the reasons furnished by the party seeking condonation of delay. Only if the reasons are genuine and acceptable, then alone such huge delay is to be condoned and not otherwise. 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. Insofar as the facts of the instant matter are concerned, the captioned appeal was filed on 23rd November, 2020 and the judgment impugned was passed on 11th November, 2013.
26. The limitation period for filing the regular first appeal is ninety days and it is observed that there is a delay of almost seven years in filing the regular first appeal which is beyond the prescribed statutory limitation period.
27. It has been contended on behalf of the applicant/appellant that she was not aware about the suit as she was not a party therein and she was also not aware about the passing of the impugned judgment. It has further been contended that the applicant/appellant was occupied in pursuing her case before the learned Executing Court by filing objections dated 5th June, 2018. The said reasons have been stated by the applicant/appellant to support her case seeking condonation of delay.
28. In light of the facts of the present case, it can be stated 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 right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party.
29. It is held that the expression ‘sufficient cause’ implies the presence of legal and adequate reasons and the applicant/appellant in the instant application has been unable to show as to how, besides purported to have been acting bona fide, she had taken all the possible steps within its power and control, and had approached this Court without any unnecessary delay.
30. This Court is of the view that the applicant/appellant has been unable to show sufficient cause and merely stating that she was not aware about the proceedings and the passing of the impugned judgment does not seem to sufficient reasons to condone the delay.
31. The applicant/appellant ought to have explained explicitly the circumstances that led to delay and merely submitting that she was 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.
32. Applying the law laid down by the Hon’ble Supreme Court in the judgment discussed above to the facts of the instant case and considering the averments made in the application for condonation of delay under Section 5 of the Act, this Court is of the view that the applicant/appellant has been unable to establish sufficient cause for condoning the inordinate delay in filing the captioned appeal.
33. Therefore, this Court does not find any cogent reason to allow the instant application seeking condonation of delay in filing the regular first appeal.
34. In light of the above discussions of facts as well as the law, the instant application stands dismissed.
RFA 284/2020, CM APPL. 30154/2020, CM APPL. 30155/2020 & CM APPL. 30156/2020

In view of the order of even date passed in CM APPL. 30152/2020 seeking condonation of delay in filing the present appeal, the instant appeal alongwith the pending applications stands dismissed.

CHANDRA DHARI SINGH, J
APRIL 9, 2024
dy/ryp/av

Click here to check corrigendum, if any

RFA 284/2020 Page 1 of 10