Ram Gopal Kulathia v. Manoj Kumar

1. The present petition has been filed under Section 115 of the CPC assailing the impugned order dated 9th January, 2009 wherein the learned ADJ dismissed the suit of the petitioner under Order 7 Rule 11 of the CPC.

2. Relevant facts that led to the filing of this petition are as under: i. On 18th September, 2001 plaintiff/petitioner’s car went missing from a MCD parking complex situated at Karol Bagh, New Delhi, in presence of respondent No. 1 who was the parking attendant at the relevant period of time. ii. Petitioner filed a FIR at the Karol Bagh Police Station and also kept perusing respondent No. 1 to either return the vehicle or, in alternative, pay the present market value of the car amounting to `3,50,000/-. 2013:DHC:6512 iii. Thereafter the plaintiff/petitioner filed a suit for recovery in the court of District Judge, Delhi along with an application of condonation of delay under Section 5 of the Limitation Act, 1963 read with Section 151 of the CPC. It was purported by the petitioner, in this petition that the delay was inadvertent and unintentional and that the suit was ready to be filed on time however, a helper clerk of the counsel of the petitioner, Sh. K.K. Sharma had kept the case papers in his drawer in the chambers of the counsel and thereafter accidentally forgot to file the same. As a matter of chance he left his service and went to his native place in Lucknow and it caused much difficulty towards finding the papers of the case which lead to the delay. iv. The respondent filed a reply to the application of the petitioner stating that the application is not maintainable and is liable to be dismissed with costs.

3. The cause of action arose on 18th September, 2001 and it is the case of the petitioner itself that the suit was to be filed on 4th June, 2005 - there is a delay of four years in filing the suit and even if it were to be filed on 4th June, 2005, the suit was filed on 2nd January, 2007. It is also asserted that from a bare reading of Section 5 of the Limitation Act, 1963 it appears that the specific section only applies to the filing of an appeal or any application, other than an application under Order 21 of CPC. It does not prescribe that the same applies to filing of a suit. Thereafter, after perusal of averments made by both the parties, vide order dated 9th January, 2009 the learned ADJ was pleased to dismiss the application of condonation of delay on the premise that the application for condonation of delay cannot be filed along with the suit.

4. It is settled law, therefore, in the present case, it was held that the delay in filing the suit beyond the period of limitation as prescribed in the schedule to the Limitation Act, 1963 cannot be condoned by the Court. The suit was filed after the expiry of period of limitation to file the suit and although the reasons may have been explained, thus, it does not fall within the ambit of Section 5 of the Limitation Act, 1963. Hence plaint has rightly been rejected by the learned Trial Court under Order 7 Rule 11 (d) of CPC.

5. The present petition alongwith pending applications are dismissed.

JUDGE DECEMBER 18, 2013