* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 04, 2009
Date of Order: September 17, 2009
+ IA No.2807/2009 in OMP No.99/09
% 17.09.2009
NATIONAL HIGHWAYS AUTHORITY OF INDIA
..... Petitioner
Through: Mr. Sumit Gahlawat with
Ms. Padma Priya, Advs.
versus
M/S JSC CENTRODORSTROY ..... Respondent
Through: Mr. Sandeep Sharma, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
1. This application has been filed for condonaton of delay
of 77 days in re-filing the present application under Section 34. It is
not disputed that the petition under Section 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
IA No.2807/2009 in OMP No.99/09Page 1 of 4
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 vs. Digvijay Singh
Sanitations & 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
IA No.2807/2009 in OMP No.99/09Page 2 of 4
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 refile 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 under Section 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 under
Section 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
IA No.2807/2009 in OMP No.99/09Page 3 of 4
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.
September 17, 2009 SHIV NARAYAN DHINGRA J.
ak IA No.2807/2009 in OMP No.99/09Page 4 of 4
