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Delhi High Court
Delhi Development Authority vs B.P. Sharma And Anr. on 1 January, 1800
Author: S Kapoor
Bench: S Kapoor


JUDGMENT

S.N. Kapoor, J.

1. Heard.

2. The petitioner, feeling aggrieved by a decree under Order 12 Rule-6 and under Order 16 Rule 1, CPC based on the report of the Local Commissioner, filed an appeal along with an application under Section 5 of the Limitation Act dated 31st March, 1997. Delay was sought to be condoned on the ground that the petitioner , applied for copy of order and decree dated 17th July, 1996 on 9th August, 1996 and the same was received on 13th September, 1996 by the Counsel. It was subsequently sent to the DDA. It was contended that “….thereafter due to procedural delay in the ‘ office of the DDA and the decision taken for filing the appeal, the file was , ( subsequently entrusted to the present Counsel for filing the present appeal”. It was I further contended that “…the appeal was accordingly drafted and immediately ‘ after obtaining the signature of the concerned officer the present appeal is being filed on 3.97”.

3. This application was, dismissed by the learned Additional District Judge by the impugned order on the ground that not a single date has been mentioned as to the movement of the file after 13th September, 1996. Such kind of an explanation would hardly make out sufficient cause for condensation of delay. The learned Additional District Judge relying upon the judgment in DDA v. Ramesh Kumar, 1996 (1) AD (Delhi) 431 and M.L. Mahajan v. DDA and Anr., 1992 RLR 242, dismissed the application. Consequently, the appeal also failed.

4. Feeling aggrieved by the said order, the present petition was filed,

5. One of the objections taken by the respondent is that the petition under Article 227 was not maintainable and either appeal or revision should have been filed. Learned Counsel for the petitioner thereupon moved an application for converting this petition into a Regular Second Appeal and along with it an application under Section 5 of the Limitation Act has also been filed to condone delay of 142 days.

6. The application is opposed on the ground that it is not permissible to convert the petition under Article 227 to a Regular Second Appeal specially after the lapse of time. It is submitted that it could not be accepted that the petition under Article 227 was maintainable against a finding on a question of fact and law specifically when there was unexplained delay in filing the appeal. It is also contended that since there was no decree, no appeal would lie on the point of limitation. In this regard, the learned Counsel for the respondent relies upon Des Raj v. Om Prakash, . He also relies upon another judgment of the Supreme Court in Babhutmal v. Laxmibi, 1975 Supreme Court 1297, in support of his contention that neither the High Court could interfere with the finding of fact recorded by subordinate Court or Tribunal under Article 226, nor under Article 227. It could not convert itself into a Court of Appeal, when the Legislature has not conferred right of appeal and made the decision of the subordinate Court or Tribunal final on facts. To a certain extent, this submission of the learned Counsel for the respondent appears justified

7. It is also submitted that even if the application is allowed to condone the delay in moving the application for conversion of the petition to Regular Second Appeal, no second appeal could be filed, for there was no decree. His submission cannot be ignored in view of catena of judgments, viz. Des Raj v. Om Prakash and Anr., and Babumiyan and Mastan and Anr. v. Smt. K. Seethayamma and Ors., .

8. As regards the plea that the delay in filing the appeal should have been condoned, there cannot be any doubt that there are certain observations in State of Haryana v. Chandra Mani and Ors., to the following effect: “it is axiomatic that decisions are taken by officers/agencies proverbially at ‘slow pace and encumbered process of pushing the file from table to table and keeping it on’ table for considerable time causing delay – intentional or otherwise – is routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible”.

9. There cannot be any doubt that “refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated”. There could also not be any dispute with the proposition that: “when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay”. (See Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma, ; Collector, Land Acquisition, Anand Nag and Anr. v. Katiji and Ors., , and G. Ramagowda and Ors. v. Special Land Acquisition Officer, Bangalore, . Procedural delay is implicit and incidental to the decision-making process in the very nature of governmental functioning from the point of view of unprotected interest on one hand and on the other maneouvering by the vested interests through the officials of the respondent. It would be unfair and unrealistic to put Government and the private parties on the same footing in all respects in such matters. This is one aspect of the matter. But at the same time, it may be difficult to accept the proposition that negligence or indolence on the part of the petitioner or file pusher officers should be condoned merely because the appellant was the State or Government undertaking, may not hold ground any further. The other aspect is that how far the Courts would be justified in turning a blind eye towards this procedural delay and would be accepting two different kinds of interpretations substantially to create two laws of limitation, one governing the State and other governing the individuals or subjects as has been held by a Division Bench of this Court in Delhi Development Authority v. Ramesh Kumar (supra).

10. It may be mentioned that discretion is conferred on the Court which is to consider an application for condensation of delay. If the Court after keeping in view relevant

principles exercise its granting relief unless it Js shown to be manifestly uniust or perverse, even the Supreme Court would be loathe to interfere with it (see Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi and Ors., ). Conversely, it should also be true if the Court after keeping .in view relevant principle? refuses to condone the delay. If seen in the light of the observations of the Supreme Court itself in Ramlal and Ors. v. Rewa Coalfields Ltd., , to the effect that the proof of “sufficient cause” is condition precedent for the-exercise of the discretionary jurisdiction conferred by Section 5 of the Limitation Act. If “sufficient cause” had not been shown, the application for condensation had to be dismissed. Seeing the averments made for condensation of delay in the application/it cannot be accepted that simply by saying ‘procedural delay’ “sufficient cause” had been shown, despite all kinds of indulgence shown by the Court in such matters.

11. It is felt that in such matters a holistic approach is desirable on considering the merit of the matter along with delay in filing an appeal etc. Individual interest has to give way to the larger public interest-to protect me public property and to ensure substantial justice. But at the same time carte blanche cannot be given to authorities as has been sought by the petitioner by blandly pleading “procedural delay” without giving any facts to prima facie establish “sufficient:cause”. Applying the above said principle it is apparent that though the Appellate Court did not consider the matter from the other objective, but in view of the admissions made, it would be evident hereinafter that the end result is that the learned Trial Court has done substantial justice in between the parties.

12. One of the grounds taken in this petition is that the learned Trial Court committed an error by deciding the matter under Order 12 Rule 6, CPC on the basis of the report of the Local Commissioner which is neither pleading for admission. Respondent filed two suits earlier, but those suits were either dismissed or withdrawn. However/it may be mentioned that the earlier suit did not relate to the land in question, for me petitioner filed S. No.120/1978 for Khasra No.478/20/1 and Khasra No.479/20/1 in 1978. For the same Khasra No. another suit was filed on 25th August,. 1992. But subsequently it was also withdrawn. These suits were filed on the basis of purchase of these plots under an agreement to sell dated 25th August, 1975. Subsequently, the plaintiff changed the description of the property and alleged that it fell in Khasra No.478/20/2/2 and Khasra No.479/20/2/2. The Khasras mentioned in the earlier suits were acquired under Award No.1662 and vacant physical possession of tile said property in earlier suit was taken over by Land Acquisition Collector on 16th October, 1975. On 4th July, 1994, the Local Commissioner was appointed. He filed a report in which he stated that the suit property fell in Khasra Nos.478/20/2/2and 479/20/2/2. The learned Civil Judge decreed the suit. It is submitted that no decree could have been passed under Order 12 Rule 6/ CPC. But in this regard Order 12 Rule 6, CPC maybe referred to as under:

ORDER XII

ADMISSIONS

“[6. Judgment on admissions,- (1) Where admissions offset have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between me parties, make such order or give such judgments as it may think fit, having regard to such admissions.”

13. This order does not depend only on the admissions made in the pleadings, for the admission need not always be made only m the pleadings, for they could be made otherwise, whether orally or in writing. The question, which should be seen, is whether there was any admission made “otherwise whether orally or in writing”. The demarcation took place under the orders of the Court. The property in question was found situated in Khasra numbers different than those Khasra numbers which were involved in the earlier suit. The premises were found to be situated in terms of the report of the Local Commissioner on those Khasras which ‘were claimed by the respondent. The Counsel

for respondent No.2/DDA did appear in Court and submitted that appropriate orders could be made in view of the report of the Local Commissioner. In view of this statement and the fact that DDA does not claim to have acquired the land in question in Khasra No.478/20/2/2 and Khasra No.479/20/2/2. It does not appear possible to say that no order could not have been passed under Order 12 Rule 6, CPC.

14. It may be mentioned that it is not the case that the Khasras which have been pointed out by the Local Commissioner were acquired by the State and their possession has been taken over and delivered to DDA. Unconsciously the learned Trial Court has done substantial justice in between the parties.

15. In such circumstance, even if the petition under Article 227 is converted into a
Regular Second Appeal, as prayed and it is deemed that appeal could be filed, the ques
tion of fact stands decided on the basis of admission made by the Counsel for the DDA
before the learned Trial Court, There was no substance in the appeal before the Appellate Court, nor even after ignoring the delay in filing the appeal. By just converting this
petition into Regular Second Appeal, no life can be injected in a dead horse. Consequently, no relief can be granted ultimately. No purpose is going to he served just by al
lowing the application to convert it into a Regular Second Appeal for the name sake and
ultimately finding that there is no substance either in the petition under Article 227 or in
the Regular Second Appeal even if the application is allowed and the delay in filing the
appeal before the Appellate Court as well as this Court is condoned. 16. For the foregoing reasons, the petition is dismissed accordingly along with all the applications. How
ever, parties are left to bear their own costs”.


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