Vinod Chopra v. Vasudev Chopra & Anr.

1. The present application has been filed by the appellant under Section 151 CPC seeking condonation of delay in filing rejoinder to the reply filed in C.M.1119/2018.

2. There is no opposition to the prayer made in the application. Accordingly, the delay of 40 days in filing the rejoinder is condoned.

3. The application stands disposed of. C.M.1119/2018 (delay of 585 days in filing the appeal)

4. The present application has been filed by the appellant under Section 5 of the Limitation Act for condonation of 585 days delay in filing the present appeal. Learned counsel appearing for the appellant submits that 2018:DHC:7010-DB the delay was neither caused on account of any bonafide reasons nor on account of negligence. It is submitted that the appellant/applicant is a senior citizen being 68 years of age, is suffering from chronic rheumatoid osteoarthritis and both his knees are dislocated and he is also suffering from financial crisis due to which he was forced to contact the legal cell of the High Court of Delhi in the month of December, 2016, but his request for providing legal aid was not acceded to. For this reason, the appellant could not file the appeal within the period of limitation.

5. Reply to this application has been filed. It is submitted by Mr.Alok Kumar, learned counsel appearing for the respondent that the present application is not bonafide; it lacks material particulars and devoid of sufficient grounds for seeking condonation of delay. Counsel further submits that the appellant has concealed material facts from this Court. It is contended that the suit was dismissed by an order dated 22.03.2016 whereas the certified copy of the same was applied only in the month of July, 2016. It is submitted that no sufficient reasons have been given for the delay in applying of certified copies. It is contended that the ground pertaining to financial crises is false as the appellant had entered into a sale transaction with respect to his immovable property bearing no. G-19/10-A (First Floor) situated at Rajouri Garden, New Delhi, which was sold by means of sale deed dated 08.08.2016 registered with the sub-registrar SR II, Basai Darapur vide registration No.7666 in Book No.1 Vol.No.22843 at pages 1 to 10 dated 11.08.2016 for a sum of Rs.24,50,000/-. Counsel submits that the Sale Deed does not reflect the correct sale price and the property was sold at a higher price. It is submitted that even after receipt of this payment, the appeal was filed in the month of December, 2017 and for which there is no explanation.

6. Counsel for the appellant explains that the fact of selling immoveable property would, in fact, support his plea that that he was suffering from financial crises. Moreover, it is submitted that out of the sale price received the applicant/appellant made payment to Karvy Financial Services in the sum of Rs.21,49,000/-. Learned counsel for the appellant places reliance on the judgment rendered by the Apex Court in State (NCT of Delhi) vs. Ahmed Jaan reported in (2008) 14 SCC 582, more particularly, para 9 of the judgment, which has been reproduced below:

9. What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975) (2) SCC 840) this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram (ILR (1918)

45 Cal 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

7. Mr.Alok Kumar, counsel for the respondent submits that unless the application seeking condonation of delay is bonafide and material facts are provided, the delay cannot be condoned. In support his submission, he relies on the decision in the case of Brijesh Kumar & Ors. v. State of Haryana & Ors., reported at AIR 2014 SC 1612, wherein the Apex Court has held as under:

8. We have heard learned counsel for the parties.

9. Paragraphs 4 and 5 of the present application seeking condonation of delay reads as under:

10. Reading of the application would show that the application is vague and lacks material particulars. Besides mentioning that the appellant is suffering from rheumatoid osteoarthritis, there is nothing on record to show that on account of this ailment during the entire period of 585 days, the appellant was bed ridden and was not in a position to engage a counsel. On the contrary, the appellant/applicant has explained that he had approached the office of Legal Aid Cell of Delhi High Court in the month of December, 2016 but no legal aid was provided. It is also admitted that the appellant had taken necessary steps to sell the property as has been described in the aforegoing para 5. Irrespective of the illness, if the appellant was capable of visiting the office of subregistrar, the illness cannot be such that prevented him from engaging a counsel and filing appeal. As far as plea of financial crises is concerned, the property was sold in the year 2016 and the payment was received. In spite of the same, the appellant has not given any reason for filing the appeal as late as in December, 2017. Having regard to the grounds so raised and applying the law to the facts of the present case, we are not satisfied that the appellant was prevented from sufficient cause in approaching this Court for filing appeal.