Full Text
HIGH COURT OF DELHI
JUDGMENT
HARVINDER SINGH ..... Appellant
For the Petitioner: Mr. K.K. Malviya & Mr. Sanjiv Joshi, Advocates
For the Respondent: None.
Allowed, subject to all just exceptions.
90/2020 (delay in re-filing)
1. Appellant impugns order dated 28.11.2017 whereby the application of the Appellant under Order 9 Rule 9 CPC seeking restoration of the Suit dismissed in default has been dismissed.
2. Appellant/plaintiff had filed the subject suit for recovery for a sum of ₹ 2,64,320/-. 2020:DHC:53
3. Trial court dismissed the suit for default on 31.01.2017 on account of non-appearance of the appellant.
4. By the impugned order dated 28.11.2017, the application under Order 9 Rule 9 CPC was also dismissed. Trial court, in the impugned order, noticed that appellant had failed to appear before the trial court on several dates and it was on the fourth consecutive date that the Suit was dismissed in default.
5. Perusal of the order sheet shows that nobody had appeared for the appellant before the trial court on 20.07.2016, 24.09.2016, 19.11.2016 and finally on 31.01.2017 when the suit was dismissed in default.
6. Present appeal has been filed with a delay of 365 days and there is a further delay of 591 days in curing the defects in re-filing the appeal.
7. The ground mentioned for condonation of delay of 365 days in filing the appeal is that appellant applied for a certified copy of the impugned order dated 27.11.2017 which was made available on 18.12.2017 and thereafter appellant had sought legal advice and the counsel advised the appellant to challenge the impugned order by a writ petition and thereafter the present petition has been filed.
8. There is no explanation given at all leave aside sufficient explanation for the delay of 365 days. When statute provides a period of 90 days in filing the appeal, delay of 365 days cannot be condoned specially when there is no explanation rendered.
9. In the application seeking condonation of delay in re-filing of 591 days, it is stated that initially a CM (Main) was filed, however, same was returned under objection and thereafter it was re-filed and once again objection was raised and due to shifting of the office of the counsel certain documents were misplaced including the filing number of the appeal and it was only on 21.07.2018 that the filing number of appeal was discovered and the appeal thereafter was refiled on 27.03.2018 and on 26.07.2018 once again objections were raised by the Registry.
10. Record reveals that the appellant took back the appeal for curing the defects several times and most of the objections which were raised by the Registry were not cured at the time of re-filing leading to a delay of 591 days in re-filing.
11. Appellant has failed to explain the delay of 591 days of re-filing the appeal. Though each days delay is not to be explained but reasonable explanation for the entire period of delay has to be provided. Appellant has not provided any explanation and has given vague grounds with several gaps.
12. Since appellants has failed to provide any reasonable explanation for the delay in filing and refiling, the applications seeking condonation of delay in filing and condonation of delay in refiling are dismissed.
13. The appeal is accordingly dismissed on the ground of limitation.
14. Order dasti under signatures of the Court Master.