Jatinder Pal Singh & Anr. v. Tejinder Singh & Anr.

1. This hearing has been done through video conferencing.

2. The impugned judgment dated 21st May, 2019 in RCA No.50/17 titled Jatinder Pal Singh v. Tejinder Singh, is under challenge before this Court by way of a second appeal wherein the first Appellate Court had refused to entertain the appeal on account of it being barred by delay. The Appellants- Plaintiffs (hereinafter “Plaintiffs”) had sought condonation of delay of 49 days in filing the first appeal, which was not acceded to by the Appellate Court.

3. The said first appeal was against the order of the Trial Court dated 2nd December, 2016 in Suit No.59/2015 titled Sh. Jitender Pal Singh & Anr. v. Tejinder Singh & Anr. A brief background of the matter is that a suit for rendition of accounts and permanent injunction was filed by the Plaintiffs herein, against the Respondents-Defendants (hereinafter “Defendants”). In the said suit, an application under Order VII Rule 11 CPC was filed initially 2022:DHC:531 by the Defendants. However, the said application was withdrawn as recorded in the order dated 3rd August, 2016. Thereafter, an application was filed for amendment of the written statement under Order VI Rule 17 CPC by counsel for Defendant No.1. On the said application, arguments were heard on 1st December, 2016 and the following order was passed: “Present:- Ld. Counsel Sh. Mehul Gupta for the plaintiff. Ld. Counsel Sh. Tamim Qadir for the defendant no.2. An application for amendment/change in the amendment application has been filed by the Ld. Counsel for the defendant no. 2. Perusal of the application shows that it was merely a typographical error that is sought to be rectified by the Ld. Counsel for the defendant no. 2. Accordingly, the request is acceded to and the change in the title of the said application is allowed. Ld. Counsel for the plaintiff who is present in court also apprised about the change sought to be made. Arguments heard on the application under order VI Rule 17 CPC. Put up for order on 02/12/2016 and thereafter for further proceedings, AD and framing of issues on 28/01/2017.”

4. Curiously, however, vide order dated 2nd December, 2016, the application under Order VII Rule 11 CPC, which was already withdrawn, was allowed by the Trial Court and the plaint was itself rejected. The said order reads as under:- “Present: None Vide separate order of even date, the application under Order VII Rule 11 CPC of the defendant no.1 stands allowed and the plaint is rejected. File be consigned to Record Room.” XXX “14. In light of the discussion above, the plaint is rejected. In arriving at the above said conclusion, the oral submissions made by the parties have also been taken into consideration.

15. Once the plaint is rejected under Order VII Rule 11 CPC, it would be an exercise in futility to pass any order on the application under Order VI Rule 17 CPC as the same has become infructuous.

16. Plaint is rejected.”

5. The knowledge of this order dated 2nd December, 2016, is stated to have been acquired by the Plaintiffs on 28th January, 2017, which was the date on which issues were to be framed, as previously recorded on 1st December, 2016. It is on the said date i.e., on 28th January, 2017, that the Plaintiffs discovered that the plaint itself has been rejected. Accordingly, the appeal was presented before the Appellate Court on 17th /18th February,

2017. However, considering the fact that the order which was under appeal was of 2nd December, 2016, the Appellate Court has refused to condone the delay. Hence, this second appeal has been filed before this Court.

6. Mr. Gupta, ld. counsel appearing for the Plaintiffs, submits that the Plaintiffs could not have imagined that when the arguments were to be heard on the application under Order VI Rule 17 CPC, the plaint would be rejected under Order VII Rule 11 CPC instead. He submits that since the application under Order VII Rule 11 CPC was withdrawn earlier, the order dated 2nd December, 2016, was not in the notice of Plaintiffs. Hence, the delay in filing the first appeal. Immediately, upon acquiring knowledge of the said order on 28th January, 2017, the first appeal was presented within 30 days.

7. On the other hand, Mr. Qadri, ld. counsel for the Defendants, submits that the order dated 2nd December, 2016 records clearly in paragraph 6, the fact that submissions were heard under Order VII Rule 11 CPC while hearing the application under Order VI Rule 17 CPC, and therefore the Trial Court did not proceed incorrectly. The relevant portion of the said order is as under:

8. Heard the counsels for the parties. Clearly, there seems to have been some misunderstanding in the manner in which the case proceeded before the Trial Court. Since the application under Order VII Rule 11 CPC was withdrawn by the Defendants, the Plaintiffs may have been under the impression that the application under Order VI Rule 17 CPC alone would be heard by the Court and orders on the same would be passed on 2nd December, 2016. Being under this impression, the Plaintiffs have again checked on 28th January, 2017 and realized that the suit had been rejected. The first appeal then, has been presented by the Plaintiffs, within 30 days thereafter. The maximum delay, even if it is taken from the date of the pronouncement of the order i.e., 2nd December, 2016 would be only about 49 days. In the opinion of the Court, it is clear that the Plaintiffs could not have contemplated that the plaint would be rejected on 2nd December, 2016 when admittedly the arguments were to be heard specifically on the application under Order VI Rule 17 CPC. Though there seems to be some reference to arguments under Order VII Rule 11 CPC in the order dated 2nd December, 2016, the Plaintiffs cannot be completely blamed in this regard. While there is no doubt that the objection under Order VII Rule 11 CPC can be considered by the Court, suo moto, even without an application being filed to that effect, the manner in which it was done in the present suit is slightly unusual as the impugned order of the Trial Court records “application under Order VII Rule 11 CPC of the Defendant No.1 stands allowed”. This application had already stood withdrawn.

9. It is also well-established that delay beyond the limitation period can be condoned if “sufficient cause” is shown by the party, especially if the party has not acted negligently or without bona fides. The Supreme Court in Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81, has held: