High Court Delhi dismissed an application for condonation of delay in filing and re-filing an appeal. The court rejected the claim that the delay was due to lawyer negligence or ignorance, holding the appellant was tardy and lacked bona fides.
Applications for condonation of delay disposed of negatively; cross-writ appeal rendered infructuous and dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RAJBIR SINGH ..... Appellant Through: Mr. Rajat Aneja and Mr. Vijay Kasana, Advs.
versus
AJAY PAL & ANR ..... Respondents Through: Mr. Madan Lal Kalkal, Adv. for R1. Mr. S.R. Sharma, Adv for DDA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
% 06.07.2015
CM Nos.13477/2014 (for condonation of delay of 1134 days in filing the appeal) and CM No.13478/2014 (for condonation of delay of 85 days in re-filing the appeal)
3.1 Respondent No.1 filed a suit for specific performance seeking to enforce an agreement to sell/bayana receipt dated 23.7.2003. The court RFA 374/2014 page 1 of 4
while decreeing the suit instead of ordering specific performance directed the recovery of Rs.10,80,000/- with interest at the rate of 10 per cent per annum from the date of the institution of the suit till its realization along with cost.
3.2 The applicant/appellant says that the delay occurred on account of the lawyer’s fault, inasmuch as, though instructions has been given to his lawyer, one Mr. Sunil Prasad, Advocate, no steps were taken by him to file an appeal against the aforementioned judgment and decree.
3.3 It is the assertion of the applicant/appellant that, for the first time, he became aware of the fact that no appeal had been filed when a notice dated 30.1.2014 (was affixed on the property of the applicant/appellant, pursuant to directions of the executing court), in March, 2014.
3.4 It is submitted that the applicant/appellant engaged another counsel on 25.3.2014 and simultaneously made enquiries with his erstwhile counsel Sh. Sunil Prasad. It is averred that his enquiries with Mr. Sunil Prasad revealed that an appeal, vide diary No.85815/2011, had been filed by him on 27.6.2011, which had been returned by the Registry with objections. Sh. Sunil Prasad, according to the applicant/appellant had taken no steps towards removal of objections and having the appeal listed.
3.5 The applicant/appellant also avers that in view of the conduct of Mr.Sunil Prasad, a complaint was lodged with the Bar Council of Delhi, on 3.4.2014; which I am told, is pending consideration.
3.6 The instant appeal was filed, I am informed by Mr. Aneja, on 5.4.2014. The Registry’s record though shows the date of filing as 21.04.2014. Qua this appeal as well, there were objections recorded by the RFA 374/2014 page 2 of 4
Registry, which lead to a re-filing, after removal of the objections, on 17.8.2014.
3.7 The non-applicant/respondent, vide his reply, has vehemently opposed the condonation of delay, not only on the ground of the vast period which has elapsed but also on the ground that the application is not bona fide .
3.8 For this purpose, the respondents counsel has referred me to the proceedings dated 1.6.2012, held before the executing court, in execution petition No.67/2011. My attention has been drawn to the fact that on that date, the applicant/appellant (who was the judgment debtor in the execution proceedings) was present, and that, he had indicated to the court that the decretal amount will be paid.
3.9 It is, therefore, the contention of the learned counsel for the respondents that the assertion of the applicant/appellant that he became aware of the non-institution of the appeal only in March, 2014 pursuant to affixation of notice issued by the executing court, does not stand reason.
4.1 The circumstances obtaining in the matter are indicative of the fact that the applicant/appellant would have had knowledge of non-filing RFA 374/2014 page 3 of 4
of the appeal by his erstwhile Advocate, Mr. Sunil Prasad, at least by 1.6.2012, if not earlier. The delay between that date and the filing of the appeal is little less than two (2) years. The instant appeal was filed only on 21.4.2014.
RAJIV SHAKDHER, J
JULY 06, 2015 s.pal
page 4 of 4
RFA 374/2014
2 issues framed by the court
Whether condonation of delay for filing and re-filing an appeal against a final judgment and decree can be granted due to a lawyer's negligence or the appellant's late discovery.
Whether the appellant's apparent tardiness and lack of candour regarding knowledge of non-filing of appeal warrants rejection of the delay application.
RAJBIR SINGH
AJAY PAL & ANR
RAJIV SHAKDHER
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
