Vishal Sharma & Ors v. Municipal Corporation & Ors

RAJIV SAHAI ENDLAW, J. JULY 12, 2018 Bs..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12th July, 2018 + RSA 83/2018 VISHAL SHARMA & ORS ..... Appellants Through: Mr. Pradeep Kumar, Adv. Versus MUNICIPAL CORPORATION OF DELHI & ORS …..Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CMs No.21715/2018 & 21717/2018 (both for exemption) 1. Allowed, subject to just exceptions. 2. The applications are disposed of. RSA 83/2018 & CMs No.21714/2018 (for stay) & 21716/2018 & 21718/2018 (for condonation of delays of 406 in filing and 37 days in re-filing the appeal respectively) 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 impugns the judgment and decree [dated 23rd November, 2016 in RCA No.84/16/10 (Unique Case ID No.02402C0178082010) of the Court of Additional District Judge (ADJ)-01 (East), Karkardooma Courts, Delhi] of dismissal of first appeal under Section 96 of the CPC filed by the predecessor of the six appellants, and in which appeal the six appellants were substituted on demise of their predecessor, against the judgment and decree [dated 17th April, 2010 in Original Suit No.177/1993, New Suit No.430/2002 of the Court of Additional Senior Civil Judge (East), Karkardooma Courts, Delhi] of dismissal of the suit for declaration, possession, damages and mesne profits filed by the predecessor of the appellants. 4. The appeal is accompanied with CM No.21716/2018 for condonation of 406 days delay in filing thereof and with CM No.21718/2018 for condonation of 37 days delay in re-filing thereof. 5. The reasons stated for the delay in filing the appeal are that (i) on the demise of the predecessor of the appellants on 4th November, 2013, the appellants were substituted in his place in the First Appellate Court; (ii) the appellant No.1 Vishal Sharma is the only male member in his family, with the appellant No.2 Smt. Indermani Sharma being a senior citizen and appellant No.3 Smt. Zinu Sharma being a female and unable to pursue the present appeal and the appellants No.4 to 6 namely Smt. Dimple Sharma, Smt. Mona Sharma and Smt. Sonu Sharma being married; (iii) the appellant No.1 could not appear regularly during the pendency of the First Appeal owing to ailments and was dependent upon the counsel engaged by the appellants; (iv) however the said counsel, despite asking several times, did not apprise the appellants about the status of the appeal; (v) the said counsel, only on 28th June, 2017 informed that the appeal had been dismissed but did not disclose the date of the dismissal; (vi) that prior to the demise of the predecessor of the appellants, the said predecessor only was conducting the case and the appellants were innocent about the procedure of the Court; (vii) the counsel who has filed the present appeal was engaged "in the month of July" and inspected the file on "26/08/2017" and applied for certified copies; (viii) it was learnt that "labour court has been shifted to Dwarka Court due to which certified copy could not be received"; (ix) finally on "20th January, 2016" the certified copies were received; (x) since the appellant No.1 is suffering from some ailment, he could not file the Second Appeal within time and hence the application for condonation of delay of 406 days; (xi) 148 days taken in obtaining certified copies is to be excluded; and, (xii) total delay is of 431 days. 6. The averments in the application for condonation of delay are undecipherable and inconsistent. While on the one hand, it is stated that the counsel before the First Appellate Court informed of dismissal of appeal on 28th June, 2017, on the other hand, it is stated that the certified copies were received on 20th January, 2016. It is not clear as to condonation of how many days delay is sought and on what basis it has been computed. While in para 14 of the application for condonation of delay, it is stated that the delay is of 431 days, in the prayer paragraph, it is stated that the delay is of 406 days. It appears that