@JUDGMENTTAG-ORDER
Shiv Narayan Dhingra, J.@mdashThis application has been filed for condonation of delay of 77 days in re-filing the present application u/s 34. It is
not disputed that the petition u/s 34 initially was filed within the period of limitation. However, the Registry raised some objections and the
objections were not removed within time and there was a delay of 77 days in re-filing the petition after removal of objections. The plea taken in the
application is that the clerk of counsel for the applicant had to leave for his native place urgently due to some personal reasons because of which
the file of the present petition became untraceable. The clerk of counsel for the applicant joined office only on 5th February, 2009 and thereafter it
took 3-4 days for him to trace the relevant file of the present case. Thus, there was delay of 77 days in re-filing the present petition.
2. The application is opposed by respondent on the ground that the affidavit filed along with the petition regarding reasons of delay was not truthful.
The petitioner in another case had taken different stand, while counsel is same, clerk is same. There the ground taken is that of confusion, here the
ground taken is of clerk having gone to his native place.
3. This Court in Delhi Jal Board v. Digvijay Singh Sanitations and Anr. OMP No. 396/2007 decided on 26.5.2009 observed as under:
6. Counsel for the petitioner, on the other hand, relied on 2007 (10) ADL 42 DDA v. R.S. Jindal wherein a Division Bench of this Court observed
that the statutory authority had to rely on their counsels who conduct cases and when the counsel admitted that there was default and mistake by
his office, the statutory authority should not be made to suffer for the mistake of the counsel.
7. A perusal of record would show that the initial filing was done on 26th August 2006 i.e. within the period of three months and refilling was done
on 18th July 2007. It is obvious from the affidavit filed by the petitioner''s counsel that after the file was taken back from Registry for removing the
objections, it got misplaced in another file with same cause title and the counsel could not pay attention due to ailment of his uncle. The other OMP
between the same parties though came up for hearing in May, 2007 but in that only an adjournment was sought by respondent. In view of this fact,
there seems to be no chance of the counsel for petitioner stumbling upon the objections lying in the file. It only seems that after execution was filed
by respondent, the petitioner''s counsel realized that objections filed by the petitioner were to be refilled after removing objections and then made
efforts to trace the objections.
8. The petitioner in this case had filed objections against the award within the stipulated period. It is only the counsel who did not rectify the petition
after removing objections. The petitioner (Delhi Jal Board) in this case being a statutory body has to depend upon on its advocate. The counsel
who had taken back the petition for removing office objections, could not re-file the petition due to intervening circumstances. I consider that the
petitioner who had filed objections within the prescribed period under the law, cannot be made to suffer for the negligence on the part of its
counsel. The delay in refilling is though is of about ten and half months but due to circumstances explained by counsel and in view of the fact that
nothing has come on record to show that what has been stated by counsel for the petitioner was not correct, the application deserves to be
allowed. It is not a case of the respondent that the uncle of the petitioner''s counsel had not suffered from heart attack or he had not left Delhi. In
DDA v. R.S. Jindal''s case (supra), this Court had considered condonation of delay of 216 days in filing Intra Court Appeal and observed that
since DDA had to rely on the counsel, for the mistake of counsel, the petitioner should not be made to suffer.
9. Section 5 of the Limitation Act is not applicable as far as filing of petition u/s 34 is concerned, however, I consider that once the petition is filed
within time, if there is delay in refilling, the Court can consider condonation of delay u/s 5 of the Limitation Act and if it is found that the reasons are
justified, such delay can be condoned.
4. It is apparent that in this case counsel for the petitioner acted negligently and there was no negligence on the part of the petitioner in filing
objections, I therefore consider that the petitioner cannot be penalized for this. But the excuses of the clerk going to his home town or clerk not
taking steps cannot be considered as a valid excuse. It is not the clerks who practice in this Court and if the clerk goes to his home town, the
counsel have entire team of juniors and other clerks to take care of their clerical business and removal of objections with the Registry is job of
counsel and not of the clerk. The application is allowed with the costs of Rs. 20,000/- to be paid by the counsel from his own account to the Prime
Minister Relief Fund.
OMP No. 99/09
List on 8th December, 2009.