TMI Blog2014 (8) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. We, therefore, find total lack of bona -fides in its approach and the impugned order of the High Court in having condoned the delay in filing as well as refilling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sustained. - Decided in favor of appellant. - Civil Appeal Nos. 7886 -7887 of 2014 (Arising out of SLP (C) Nos. 10811 -10812 of 2014), C.A. Nos. 7888 -7889/2014 in SLP (C) Nos. 10946 -10947/2014, C.A. Nos. 7890 -7891/2014 - - - Dated:- 20-8-2014 - KALIFULLA, FAKKIR MOHAMED IBRAHIM AND SINGH,SHIVA KIRTI, JJ. JUDGEMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents filed the scrutiny charges on 11.04.2008, as per receipt No. 73 dated 11.04.2008. That while on the one hand no reason, much less sufficient cause was shown for the enormous delay of 1727 days in the matter of refiling of the appeal papers, according to him when the appeals were presented without payment of Court fee and without appropriate application for condoning the delay of 9 days, which was mandatory as stipulated under Order XLI Rule 3A of the Code of Civil Procedure, the Appellant(s) cannot be heard to say that the appeals were filed in time. The learned Senior Counsel by referring to the Appellate Side Rules of the Delhi High Court, in particular, the amended Rule 5(3), wherein it is stipulated that once the appeal papers are returned for complying with any defects and such papers are not refiled within the time granted by the Registry, the maximum of which is only 30 days, such delay in the matter of refiling would result in treating the filing of the appeals on any subsequent date as fresh filing, in which event the delay involved would be 1825 days in filing the appeals themselves. The learned Senior Counsel also contended that though it was contended on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent date to the initial filing would date back to the date of such initial filing. (5) THE learned Senior Counsel for the Appellant(s) relied upon the decisions of this Court in B. Madhuri Goud v. B. Damodar Reddy reported in : (2012) 12 SCC 693, Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai reported in : (2012) 5 SCC 157, Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Ors. reported in, (2013) 12 SCC 649. In support of his submissions the learned Senior Counsel for the Respondents relied upon the decisions in State of M.P. and Anr. v. Pradeep Kumar and Anr. reported in : (2000) 7 SCC 372, N. Balakrishnan v. M. Krishnamurthy reported in : (1998) 7 SCC 123, B. Madhuri Goud (supra) and Mahant Bikram Dass Chela v. Financial Commissioner, Revenue, Punjab, Chandigarh and Ors. reported in : (1977) 4 SCC 69. (6) AT the very outset, we wish to note the submission of learned Senior Counsel for the Appellant(s) as regards the one based on the amended Rule 5(3) of the High Court Appellate Side Rules. The said submission was countered by learned Senior Counsel for the Respondents contending that such a Rule cannot run counter to the period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand, when the appeals were presented with a delay of 9 days without payment of proper Court fee and when the required Court fee was duly paid at the time of refiling, it should be construed that such payment of Court fee was deemed to have been paid on the date on which the appeals were originally presented by virtue of the implication of Section 149, Code of Civil Procedure. Therefore, we do not find any substance in the said contention made on behalf of the Appellant(s). (7) IT was then contended by learned Senior Counsel for the Appellant(s) that under Order XLI Rule 3A, it is stipulated that when an appeal is presented after the period of limitation, it should be accompanied by an application supported by an affidavit setting forth the facts on which the Appellant(s) relied to satisfy the Court that there was sufficient cause for not preferring the appeals within the period prescribed. The contention of the Appellant(s) was that since at the time of filing of the appeals after 9 days delay, no application for condonation of delay of the said 9 days was filed along with the supporting affidavit simultaneously and that such application was filed only in the year 2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context need be interpreted as an obligation cast on the Appellant. Why should a more restrictive interpretation be placed on the sub -rule? The Rule cannot be interpreted very harshly and make the non -compliance punitive to an Appellant. It can happen that due to some mistake or lapse an Appellant may omit to file the application (explaining the delay) along with the appeal. Having regard to the said pronouncement of this Court with which we fully concur, the said submission also stands rejected. (9) IT was then contended on behalf the Appellant(s) that the period of delay in filing the appeals, as well as a long delay of 1727 days in the refiling was not properly explained by the Appellant(s). It was pointed out to us that in the applications filed in support of condoning the delay in filing the appeals, as well as, in refiling the appeal papers there was virtually no explanation at all covering the period of delay. When we examined the said submission by making reference to the relevant applications filed on behalf of the Respondents in the applications filed for condoning delay of 9 days in filing the appeals, the stand of the Respondents was that after the judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the Respondents took up the matter with its previous counsel about the issue of delay in the refiling, no satisfactory reply was received, that the records handed over to the Respondents by its previous counsel was incomplete and that it took sometime for it to collect the incomplete records and that is how the delay of 1727 days occurred in the matter of refiling which was unintentional and inadvertent. Based on the above averments, it was prayed that delay of 1727 days in refiling the appeals should be condoned. (11) THE above applications were resisted by the Appellant(s) by filing a detailed reply on 16.11.2013 pointing out that the applications filed in support of applications in condoning the delay of 9 days in filing, as well as 1727 days in refiling did not explain the enormous delay, that the claim of the Respondents that they were not aware of the return of the files for complying with the defects till 2012 was an incorrect statement, that such an enormous delay in the refiling as well as delay of 9 days in filing was not supported by an affidavit of the concerned advocate, that the Appellant(s) when they filed their appeals as against that part of the judgment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the concerned party or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the concerned party from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals. (14) IN the case on hand, the delay in refiling was 1727 days. As rightly pointed out by the learned Senior Counsel for the Appellant(s), the Respondents paid the scrutiny charges on 11.04.2008 as disclosed in the Receipt No. 73 issued by the High Court of that date. When the appeal papers were filed on 06.09.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents. In this respect, the claim of the Appellant(s) that serious prejudice would be caused to the Appellant(s) merits acceptance. In the rejoinder filed by the Appellant(s) to the Respondents' counter, the Appellant(s) has explained as to how they had to spend a huge amount to upkeep the property by approaching the authorities of the Delhi Municipal Corporation, the enormous amount spent to the tune of ₹ 28,00,000/ - by way of house tax from the year 2004 up to this date and various other improvements made in the property during the period wherein the delay in the matter of filing of the appeals and refiling was made by the Respondents. Therefore, the principle that the law of limitation is based on sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance. In this context a Division Bench decision of the Madras High Court in Tamil Nadu Mercantile Bank, Ltd. (represented by its Chairman), Tuticorin v. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and Anr. reported in, 1990 (I) LLN 457 can be usefully referred to. Paragraphs 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly referred to which read as under: (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (16) WHEN we app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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