Mohd. Aslam and Ors. v. Jamila Begum and Ors.

1. This application is filed by the plaintiffs seeking condonation of delay of 194 days in re-filing the suit in the interest of justice.

2. The present suit is filed seeking declaration against the defendants that the plaintiffs are the co-owners/joint owners of the suit property and for declaring Hiba dated 03.01.1979 as null and void.

3. It is the case of the plaintiffs that knowledge of the Hiba was obtained on 03.12.2013 in another proceedings being CS 206/2013. In those proceedings, the plaintiffs then filed counter claim on 01.11.2014. Subsequently, with the permission of the court on 19.05.2015 the said counter claim was withdrawn with liberty to file a fresh proceeding regarding the said document. It is further pleaded that the mother of the plaintiff Nos.[1] to 5 expired on 22.08.2016. It is also pleaded that it was the mother who was in the control of the records and documents. The suit was 2019:DHC:2424 CS(OS)301/2017 Page 2 filed on 17.10.2016.

4. It is further pleaded that the suit was lying under objection as alongwith the suit no documents were filed by the plaintiffs. Re-filing of the suit was delayed as some documents were in Urdu and also dim. The originals of the documents could not be located on account of death of the mother. Ultimately they were located some times in May, 2017 and thereafter the translated copy of the same was obtained and the suit was refiled on 01.07.2017.

5. I may note that the application filed by the plaintiffs, does not contain much material. However, the plaintiffs have made detailed submissions in rejoinder that has been filed subsequently.

6. The learned counsel appearing for the defendants has opposed the present application. He has pleaded that delay of 194 days cannot be condoned on the basis of the reasons given in the present application. He also points out that perusal of the plaint would show that necessary reference to the documents have already been made and no further and new documents have been placed on record at the time of re-filing.

7. I have heard learned counsel for the parties.

8. I may only note that if limitation is computed from the date of knowledge i.e. 03.12.2013 of the Hiba, then the present suit, even if, filed on 01.07.2017, the date of re-filing of the suit would prima facie be within limitation.

9. That apart, it is a matter of the fact, that the plaintiffs had difficulty in locating some of the original documents details of which are given in the rejoinder due to the death of the mother. Categorical averments are made that legible copies of these documents were received in the month of May, CS(OS)301/2017 Page 3

2017. Thereafter the translation was completed in the month of May, 2017 and suit could be re-filed on 01.07.2017 immediately on reopening of the court after the summer vacation.

10. Then courts are normally more liberal in condonation of the delay in the cases of re-filing of the matter. Reference in this context may be had to the judgment of the Division Bench of this court in S.R. Kulkarni v. Birla VXL Ltd., 1998 (3)RCR (Civil) 436. The Division Bench of this Court held as follows:- “8. Notwithstanding which of the aforesaid Rules are applicable, the question of condensation of delay in refiling of an application has to be considered from a different angle and viewpoint as compared to consideration of condensation of delay in initial filing. The delay in refiling is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act (See Indian Statistical Institute Vs. M/s. Associated Builders and others AIR 1978 S C 335. In the present case, the initial delay of 7 days in filing the application for leave to defend stood condoned and that has not been challenged by any of the parties. It is no doubt true that the counsel for the appellant had not been very diligent after filing of application for leave to defend on 19th August, 1995 as counsel did not check whether the application was lying in the Registry with any objection or not. Considering however, the nature of the objections, it was a matter of removal of the objections by the counsel and on the facts of the present case, it is difficult in this case to attribute any negligence to the party. On the facts of the case, the effect of negligence or 'casual approach', which would be appropriate term to be used here, of the counsel on his client, does not deserve to be so rigorous so as to deny condensation of delay in refiling the application. The casual approach of the counsel is evident as no timely efforts were made firstly to find out after filing application on 19th August, 1995 as to whether the Registry had raised any objection or not. Secondly, despite CS(OS)301/2017 Page 4 order of the Joint Registrar dated 9th January, 1996, the objection was removed only on 4th March, 1996 i.e. after the date which the Joint Registrar had fixed for the application being posted for hearing before the Court. When the application was refiled on 4th March, 1996, one would expect the person filing to be more careful thereby not giving an opportunity to the Registry to raise any other objection. But that was no so. The result was that the second objection was raised which, as noticed above, was removed on 21st March, 1996 but application was refiled only on 27th March, 1996. Apart from this casual approach, we do not find any mala fide intention on the part of the appellant to delay the proceedings. When there is negligence or causal approach in a matter like this in refiling of an application, though the court may not be powerless to reject an application seeking condensation and may decline to condone the delay but at the same time, passing of any other appropriate order including imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of refiling of the application.”

11. In my opinion, the plaintiffs have shown sufficient reasons for condoning the delay of 194 days in re-filing the case. The application is allowed, subject to payment of costs of Rs.30,000/- to be paid to defendant Nos.[1] to 5 and 10. The defendants may file written statement within thirty days from today. CS(OS) 301/2017

12. List before the Joint Registrar for completion of pleadings and admission-denial of documents on 19.07.2019.

JAYANT NATH, J. MAY 02, 2019