Jasmeet Singh, J
CM APPL. 37522/2021
1. This is an application seeking condonation of delay of 1142 days in re-filing the present appeal.
2. The present appeal is assailing the impugned judgment dated 01.06.2018 passed in Suit No. 12845 of 2016, wherein the suit for recovery of Rs. 5, 53,022/- filed by the appellant was dismissed.
3. It is stated in the application that present appeal was filed on 06.08.2018 which was well within the limitation period as prescribed under law. However, there has been delay in re-filing the appeal.
4. It is stated by Mr. Taneja, learned counsel for the appellant that the appeal was filed on 06.08.2018 by the previous counsel representing the appellant before the learned trial court. Due to some defects pointed out by the registry, appeal was not listed before the Court.
5. It is further stated that it was only when the appellant requested the previous counsel to return the files, he became aware of the defects marked by the registry.
6. Mr. Taneja further points out that the appellant had also paid money for the purchase of court fees of Rs. 7,865 which was the court fees affixed on the suit before the trial court. But on return of the files, appellant noticed that the said previous counsel had not affixed the court fees in the appeal. When the appellant inquired about the filing of the appeal and number of the appeal, the previous counsel on one pretext or the other gave excuses and told the appellant that all the requisite steps were being taken for prosecuting the appeal and soon the defects would be cured.
7. He further states that in January-February, 2019, the appellant was detected with Tuberculosis and admitted in the Noida Medical Centre Limited. On account of nature of the disease and care required as a remedial measure, the appellant was confined to the Hospital and thereafter in home. Further, the appellant in February/March, 2020, personally met the previous counsel to know about the actual status of the appeal. It was then the appellant was informed about the status of RFA still lying under the objections with the registry of this Court. Appellant then requested the previous counsel to return the files along with the appeal paperbook, previous counsel returned the files and informed that the original appeal paperbook is lying under objections and gave assurance that the original appeal paperbook would be returned after collecting the same from the registry.
8. In the meantime due to Covid-19 pandemic, previous counsel did not take any steps and assured the appellant that once the restrictions are removed, requisite steps would be taken. In January, 2021, the previous counsel upon having the original paperbook taken from the registry, regretted the poor performance on the part of his office in not getting the defects cured and requested the appellant to be given another opportunity to remedy the default.
9. The appellant left with no other option as he had already paid the monetary expenses, agreed to give another opportunity for removing the defects and getting the matter listed before the court.
10. He further argues that in the midst of second wave of Covid-19 pandemic in March/April, 2021, the appellant’s nephew (brother’s Son) was severely affected by the virus and had to be admitted in the Hospital keeping in view his oxygen levels going down below the safe levels. Hence on this account and on account of Covid-19 pandemic, the appellant could not meet his counsel. When the situation improved, the appellant again approached the previous counsel to know the status of the appeal. He was informed that again appeal was filed in April, 2021 and due to pandemic, the previous counsel’s office could not pursue with the registry.
11. In September, 2021, appellant was informed that the appeal is still lying under objections since there was an issue with regard to the payment of court fees. The appellant had paid the money for court fees way back in 2018 but due to the negligence on the part of the previous counsel, court fees documents were missing from previous counsel. The appellant thereafter withdrew the files from the erstwhile counsel and decided to engage a new counsel.
12. Subsequently, the present counsel was engaged in October, 2021 and defects were removed. After removing the defects, the present appeal in compliance of the High Court Rules was readied to be listed before the Hon’ble Court. In this whole process, there is a delay of 1142 days in re-filing the appeal.
13. Notice was already issued to the respondent on 26.10.2021. The counsel for the respondent entered appearance and sought time to file reply to the present application on several dates of hearing.
14. On 07.08.2023, learned counsel for the respondent submitted that he does not wish to file reply to the present application and sought adjournment to argue on the present application.
15. Mr Dixit, learned counsel for the respondent strongly opposes the present application.
16. Mr Dixit submits that there is an inordinate delay of 1142 days in re-filing the present appeal. He relies upon the Delhi High Court Rules which are extracted below:-
“Rule 5 Chapter “1”, Part A prescribes as under:-
5. Amendment - The Deputy Registrar Assistant Registrar, Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code.
(2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Asstt. Registrar, in charge of the filing Counter under sub-rule(1), it shall be registered and listed before the Court for its dismissal for non-prosecution.
(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar in charge of the Filing Counter, under sub-rule(1) it shall be considered as fresh institution.
Note – The provision contained in Rule 5(1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether civil or criminal.”
The above referred Rules was substituted with effect from 1.12.1998 vide notification No.208/DHC/Rules dated 05.08.1998.
17. He further argues that even if the period of Covid-19 pandemic is counted, then also there is a delay of more than 500 days in re-filing the present appeal. It is further argued that no satisfactory reasons are given to condone the delay and all the delay has been shifted on the previous counsel.
18. He further places reliance on the following judgements:-
A. Lingeswaran ETC. vs. Thirunagalingam, SLP No. 2054-2055/2022. (Para 5)
B. H. Dohil Constructions Co. P. Ltd. vs. Nahar Exports Ltd & Amp Anr., (2015) 1 SCC 680. (Para 20 to 24)
C. Prashant Chauhan vs. Habib Ahmed, 2010/DHC/5808. (Para 6 to12)
D. MCD vs. Anand Prakash Gupta, 2010/DHC/3367. (Para 8 & 9 and 11 & 12)
19. I have heard the submissions of the learned counsel for the parties.
20. The issue which needs consideration is whether the delay of 1142 days in re-filing the present appeal can be condoned in view of the facts and circumstances noted above.
21. It is evident from the affidavit sworn by the appellant that it is dated 06.08.2018 and attested on the same day which shows that the appellant approached the previous counsel before the expiry of 90 days and the present appeal was filed within the limitation period prescribed under the law.
22. Thereafter, the registry of this court marked some defects in filing of the present appeal which were to be removed by the previous counsel within 30 days. It is to be noted that once the appellant has approached the previous counsel and the appeal was filed in court, it was the previous counsel who was required to remove the defects and was requested to have the appeal listed in court.
23. Section 5 of the Limitation Act, 1963 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.”
24. Law of limitation applies to the litigants to invoke their remedy in a certain reasonable time. The word “sufficient cause” is to be given liberal construction.
25. The Hon’ble Supreme Court in Sandhya Rani Sarkar v. Sudha Rani Debi, (1978) 2 SCC 116 and more particularly in para 8 has observed as under:-
“8. ………It is undoubtedly true that in dealing with the question of condoning the delay under Section 5 of the Limitation Act the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay, vide Sitaram Ramcharan v. M.N. Nagarshana [AIR 1960 SC 260 : (1960) 1 SCR 875 at 889 : 1960 SCJ 183] . However, it is not possible to lay down precisely as to what facts or matters would constitute “sufficient cause” under Section 5 of the Limitation Act. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party i.e. the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case (vide State of W.B. v. Administrator, Howrah Municipality [(1972) 1 SCC 366 : (1972) 2 SCR 874] ). Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, this Court would be loathe to interfere with it.”
(emphasis added)
26. Further, the Hon’ble Supreme Court in Rafiq v. Munshilal, (1981) 2 SCC 788 has held as under:-
“3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. ……… Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law………”
(emphasis added)
27. It is apposite to refer to the decision of the Hon’ble Supreme Court in Indian Oil Corpn. Ltd. v. Subrata Borah Chowlek, (2010) 14 SCC 419 in the above context. Relevant extract reads as under:-
“6. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (See Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] , State of W.B. v. Howrah Municipality [(1972) 1 SCC 366] , N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] and Sital Prasad Saxena v. Union of India [(1985) 1 SCC 163] .)
7. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361 : (1962) 2 SCR 762] this Court held that : (AIR pp. 363-64, para 7)
“7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan [ILR (1890) 13 Mad 269] : (ILR p. 271)
“… Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.”
8. Similarly, in Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195] this Court observed that : (SCC p. 202, para 12)
“12. … But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”
(emphasis added)
28. From the facts and circumstances noted above, it seems that it was the previous counsel of the appellant who was not diligent in pursuing the present appeal which caused the delay in re-filing. The appellant gave all the papers to his counsel, signed the necessary affidavits, got them attested and hence, it was the duty of the counsel who should have got the appeal listed. Reliance is placed on observations made in the judgment of Rafiq (supra). All these facts have been duly stated in the application seeking condonation of delay in re-filing and since no reply has been filed by the respondent, despite several opportunities, the same are duly to be admitted. Hence, I am of the view that the appellant should not be made to suffer on account of the negligence on behalf of his previous counsel.
29. Learned counsel for the appellant also places reliance on the order dated 10.01.2022 passed by the Hon’ble Supreme Court in M.A. No. 21 of 2022 in M.A. No. 665/2021 in Sou Moto Writ (Civil) No. 03/2020, wherein the period from 15.03.2020 to 28.02.2022 is to be excluded for the purposes of limitation. The relevant extract is quoted below:-
“5. Taking into consideration the arguments advanced by the learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:
5.1. The order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] is restored and in continuation of the subsequent orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 : (2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50] , 27-4-2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 : 2021 SCC OnLine SC 373] and 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947] , it is directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
5.2. Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.
5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.
5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”
(emphasis added)
30. A perusal of the above judgement shows that the period from 15.03.2020 to 28.02.2022 is to be excluded in view of the Covid-19 pandemic. Applying in the present case at hand, after curing the defects, the appeal was listed before the court on 26.10.2021, if the above mentioned period is excluded, then the delay in re-filing the present appeal would be about approx. 553 days.
31. Another important aspect is that the appellant had filed suit for recovery which was dismissed by the learned trial court vide impugned order dated 01.06.2018. Therefore, there is no decree which can be enjoyed by the respondent. Hence, in the absence of any decree, if the delay in re-filing is condoned, there will be no prejudice caused to the respondent. Further it was the appellant who had filed the suit for recovery which was dismissed, consequently, it is the appellant who is still suffering for his appeal challenging, rejection of his claim, is not being considered. As a result, respondent had not suffered any prejudice or loss due to the delay in re-filing the present appeal.
32. The judgments cited by the learned counsel for the respondent are misplaced as none of the judgments have considered the period of Covid-19 pandemic. The judgment of Lingeswaran (supra) is not applicable to the present case as in that case, the trial court condoned the delay despite observing that there is absence of material evidence and no merit in the application. Later on, it was set aside by the High Court and thereafter, upheld by the Hon’ble Supreme Court.
33. Further in MCD (supra), this court was of the view that the appeal filed was an eyewash by the MCD as neither the pleadings, nor certified copy of the impugned judgment or decree nor vakalatnama nor court fees was filed. In the present case, the report shows that the certified copies, affidavits etc. all were filed except advalorem court fees and annexures had to be retyped as they were dim copies. Hence in the present case, the appeal filed during the limitation period was a substantial filling and not a bunch of paper. The judgment of Prashant Chauhan (supra) is distinguishable as the co-ordinate bench dismissed the appeal on ground of delay in filing the appeal itself, the same is not the case here. Further in H. Dohil Constructions Co. P. Ltd (supra), the application seeking condonation of delay in refiling was devoid of any explanation.
34. In the present case, delay in re-filling has been explained, no reply has been filed disputing the averments made in the present application and the appeal was filed within the period of limitation, Covid-19 pandemic halted the systems in a humongous way.
35. I am of the view that the reasons noted above are satisfactory and the delay in re-filling does not seem to be within the appellant’s control and the conduct of the appellant does not indicate inaction, negligence and malafide on his part. Hence the application seeking condonation of 1142 days delay in re-filing the present appeal needs to be allowed.
36. For the foregoing reasons, the application is allowed and delay of 1142 days in re-filing the present appeal is condoned.
37. The appellant shall pay costs of Rs. 5,000/- to Delhi High Court Legal Services Committee within four weeks from today which shall be utilized in counselling of POCSO Victims.
RFA 369/2021
38. List on 14.02.2024.
