Delhi Development Authority vs Smt. Sushil Kaur And Another on 26 August 1996

Delhi High Court
Delhi Development Authority vs Smt. Sushil Kaur And Another on 26 August, 1996
Equivalent citations: AIR1997DELHI104, AIR 1997 DELHI 104
JUDGMENT
1. The appellant Delhi Development Authority (in short DDA) preferred an appeal against the judgment and decree passed by the Additional District Judge, Delhi dated 24th August, 1992. This appeal was filed on 13th December, 1993 and the same was listed as RSA No. 132/93. Along with this appeal, the present application under Section 5 of the Limitation Act had been filed.

2. DDA in this application has tried to assign reasons for delay in filing the appeal. Those reasons can be summarised and sum up in two parts — one dealing with the delay which can be attributed to the panel lawyer Mr. Alok Kumar, who took almost a year in sending the certified copy of the judgment and decree sheet. Second set of delay is on account of red-tapism in taking official decision and in official movement of the file.

3. From 24th August, 1992 when judgment was delivered, according to DDA till 28th April, 1993 certified copy of the judgment/decree sheet was not sent by the panel lawyer. After his removal from the panel, he sent the case file back along with the judgment to the Legal Branch of the DDA in April, 1993. As per record of the DDA, Mr. Alok Kumar applied for judgment and decree sheet on 8th September, 1992. Certified copy was ready on 21st September, 1992, when counsel took delivery nobody knows. He, however, sent the same to the office of the DDA on 28th April, 1993 along with the file. Hence, delay up to 28th April, 1993 was due to the negligence on the part of Mr. Alok Kumar, panel lawyer of DDA in conducting this case.

4. After 28th April, 1993 when the certified copy of the judgment along with the file was received in the officer of DDA, it was examined by the Legal Branch. The Legal Branch gave the opinion that limitation for filing the appeal or revision had already expired, therefore, the decision of filing the appeal be taken on priority basis. These observations were made by the Legal Branch on 3rd May, 1993. On 14th May, 1993 the opinion was expressed that since the filing of the appeal rest on the identity of the land and Khasras No., therefore unless that is ascertained appeal cannot be filed. Hence the matter was again examined on 21st May, 1993, 31st May, 1993 and 3rd June, 1993. On 3rd June, 1993 it was decided to file the appeal.

5. After having taken the decision, officials of DDA again opined that since there were other cases arising out of the same judgment, hence files of these cases be tagged before decision could be taken. This opinion was expressed on 11th June, 1993. As per DDA’s own showing the files of the other cases arising out of this very judgment were attached to the file of this case on 28th June, 1993. It was reported on the file that there were four cases relating to Khasra Nos. 162, 163 and 167 situated at he Revenue Estate of Sadar Bazar (North), Delhi out of which two cases already stood decided. Again the matter was examined on 8th July, 1993 when it was decided to file an appeal in the case in question. On 12th July, 1993, it was decided to file the appeal. Thereafter, Assistant Law Officer opined that since in one case the decision of the Court is awaited, therefore, DDA should wait the decision in that case before deciding to file the appeal. Hence, the matter was again sent to the Joint Director for orders.

6. On 23rd July, 1993 report was called for. It was received on 4th August, 1993. This was examined by the Executive Officer (Lands) on 5th August, 1993. He also expressed opinion that appeal be filed. This opinion was confirmed on 10th August, 1993. Thereafter it is alleged that this case file was entrusted to Mr. Amit Chadha, panel lawyer of DDA for drafting the appeal. He opined that a Senior Advocate be engaged. Accordingly on 1st November, 1993, decision Was taken to send the matter to Senior Advocate. File of this case accordingly was entrusted to him on 17th November, 1993 and thereafter this appeal was filed on 13th December, 1993.

7. It is in this background that Mr. Ravinder Sethi, Senior Advocate appearing for the DDA contended delay took place, since there was no intentional delay but due to office procedure, hence it be condoned.

8. This application has been contested by the respondent inter alia, on the ground that no sufficient cause has been shown for condoning the delay. Moreover, the delay has not been explained properly and sufficiently. DDA took it for granted that appeal could be filed at its convenience at any time it liked. That is why in spite of senior officers having been informed by the Legal Branch that limitation of filing the appeal had already expired hence the decision for filing the appeal be taken on priority basis, still no action was taken. This observation was made by the Deputy Legal Adviser on 3rd May, 1993. However, a decision was taken to file appeal on 3rd June, 1993 as per DDA’s own showing. But appeal was still not filed till 13th December, 1993. This is a sheer act of negligence. Nor it can be said that the delay was on account of fault of any officer in shuffling the file from one table to another. DDA cannot take shelter under the garb of bung a public undertaking nor can claim immunity from the law of limitation.

9. There is in fact no appeal pending before this Court in the eyes of law. For an appeal to be registered as proper appeal, it must be accompanied by certified copy of the decree and judgment. Certified copy of the decree against which this appeal has been preferred has not been filed nor the decree and judgment of the First Appellate Court has been placed on record till date. Therefore, there is no appeal pending before this Court. Since, there is no appeal in existence hence question of condoning the delay does not arise. The appeal having not been accompanied by the certified copy of the decree is liable to be dismissed.

10. On the above two grounds, the respondent has contested the application for condensation of delay.

11. Admittedly, there is delay of 386 days in filing the appeal. It is also a fact that this appeal is not accompanied by the certified copy of the decree sheet. Moreover, affidavit in support of this application was typed in November, 1993 whereas appeal has been filed on 13th December, 1993. This shows scant regard for the Law of Limitation by the DDA.

12. From the facts stated above, one thing is clear that decision to file the appeal in this case was taken for the first time on 3rd June, 1993. In spite of deciding to file the appeal, the filing of appeal was withheld on the ground that decision in other suits were awaited. This was decided in spite of Legal Branch giving the decision that the time for filing the appeal had already expired. Despite that, the official wanted to wait for the decision in the other cases pending in the Court, that to my mind, cannot be called a sufficient ground to condone the delay. Mr. Ravinder Sethi to stress that delay was due to red-tapism hence delay is liable to be condoned placed reliance en the decision of the Supreme Court in the case of Naubat Ram Sharma v. Additional District Judge II, Moradabad, AIR 1987 SC 1352 and the decision of this Court in the case of Union of India v. R. P. Builders, . In these cases it has been observed that delay in movement of file in the office is a sufficient ground to condone the delay. There is no quarrel with the proposition of law laid down in the above cases. I am, however, constrained to say that the facts of this case are such which cannot be construed as delay on account of shuffling of file or for the reason of waiting the decision. On the contrary the facts show that the Legal Branch intimated as far as back as on 3rd May, 1993 itself that limitation has already expired and the decision should be taken on priority basis. As pointed out above, the decision was in fact taken to file the appeal on 3rd June, 1993. What prevented the DDA from filing the appeal has not been explained. On the contrary, as pointed out above the official of the DDA took the stand to find out the Khasra No. and for lagging of file of other cases which was done on 11th June, 1993. After having satisfied about the Khasra No. and the judgment in the connected case and after having perused the file of connected case, still appeal was not filed. On 8th July, 1993 again decision was taken to file the appeal. Inspite of deciding afresh to file the appeal, the official of the DDA instead of doing so decided to await the judgment in the other cases. This can be called a case of casual attitude to the appropriate authority. DDA was not only negligent but appears to be least bothered for the law of land. In spite of Legal Branch’s decision it did not bother to file the appeal.

13. Besides there being an unexplained delay of 386 days, another important aspect of the case is that there is no appeal in the eyes of law. Present appeal is incomplete. Under Order 41, Rule 1, C.P.C. certified copy of the decree sheet against which appeal is preferred is required to be filed along with the memo of appeal. The provisions of Order 41, Rule 1, C.P.C. apply to second appeal preferred from the decree of the First Appellate Court by virtue of Order 42, Rule 1, C.P.C. With the present appeal till date certified copy of the decree sheet of the first Appellate Court as well as of the Trial Court have not been filed. Therefore, the appeal is incomplete. In this regard reference can be made to the decision of the Supreme Court in the case of Shakuntala Devi Jain v. Kuntal Kumari, wherein it has been observed that under Order 41, Rule 1 the Appellate Court can dispense with the filing of the copy on the judgment but it has no power to dispense with the filing of the copy of the decree. The memorandum of appeal is not validly presented unless it is accompanied by certified copies of the decree and the judgment. In the present case, certified copy of the decree sheet has not been filed till date. In the index of the appeal, it has been mentioned that the certified copy of the decree has been filed as Annexure ‘B’, but perusal of the file shows that no decree sheet was filed as Annexure ‘B’ at page 40. At page 40 only certified copy of the opening sheet of appeal preferred in the Court of Additional District Judge has been filed. It is not a copy of the decree sheet. In fact, the copy of the judgment only has been filed, but not the decree sheet. For this reason also, I am of the opinion that there is no proper appeal instituted before this Hon’ble Court. The appeal being incomplete is liable to be dismissed besides being time barred. Ordered accordingly.

14. Appeal dismissed