Nazma Begum v. Ali Abbas

RAJIV SAHAI ENDLAW, J JULY 25, 2018 Pk..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th July, 2018 + RSA 105/2018, CM No.24828/2018 (u/O 41, R.5 CPC for stay) and CM No.28429/2018 (for condonation of 1413 days delay in filing) NAZMA BEGUM ..... Appellant Through: Mr.Surinder Anand, Ms.Sugandha Anand, Advocates Versus ALI ABBAS ..... Respondent Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the CPC impugns the order (dated 29th August, 2014 in RCA No.48/2013 of the Court of Additional District Judge, East) of dismissal of First Appeal, under Section 96 of the CPC preferred by the appellant / defendant against the judgment and decree [dated 26th March, 2013 in Suit No.197/2012 (old No.10/2004) (Unique case ID No.02402C0475502004)] for recovery of Rs.1,29,625/- together with interest and costs in favour of the respondent / plaintiff and against the appellant / defendant, as a consequence of dismissal of the application accompanying the First Appeal for condonation of 41 days delay in filing the First Appeal. 2. This appeal is also accompanied with an application for condonation of 1413 days delay in filing thereof. 3. The appeal along with the application for condonation of delay came up before this Court first on 20th July, 2018 when, besides observing that prima facie no satisfactory explanation for condonation of delay had been given, it was enquired from the counsel for the appellant / defendant / judgment debtor as to how the second appeal is maintainable when there is no judgment and decree of the First Appellate Court and on request of counsel for the appellant, the hearing adjourned to today. 4. Today, the aspect of maintainability of the second appeal has been decided by a separate order wherein the appeal has been held to be maintainable. 5. The counsel for the appellant / defendant / judgment debtor has been heard. 6. The reason given for the delay of 1413 days in filing this appeal is: (i) that the counsel for the appellant / defendant / judgment debtor who was conducting the first appeal left the rental accommodation which he was occupying and thus, the appellant / defendant / judgment debtor lost contact with the counsel and was made to understand that that suit of the respondent / plaintiff / decree holder had been dismissed; (ii) that the appellant / defendant / judgment debtor, only on 2nd February, 2018 came to know that the first appeal preferred by her had been dismissed, when the respondent / plaintiff / decree holder sought execution of the money decree; (iii) thereafter, the present counsel was engaged and the appeal got prepared and had been filed; 7. Except for making a bald statement that the appellant / defendant / judgment debtor had contacted the advocate in the First Appeal, namely, Shailendra Kumar Singh at B-31, DDA Colony, New Zafrabad, Delhi and who had assured the appellant / defendant / judgment debtor that he will take prompt action against the order dated 29th August, 2014 supra, nothing is shown that such an advocate exists or was functioning at the address given; no whereabouts at present of Shailendra Kumar Singh have also been given. 8. The appellant, along with the Memorandum of Appeal, as Annexure- P6, has filed the Memorandum of First Appeal preferred by her and which First Appeal is found to have been preferred by Mr.D.P. Aggarwal and Mr.Joginder Kumar, Advocates and not by Mr.Shailendra Kumar Singh, Advocate. The counsel for the appellant, inspite of asking, is unable to show proceeding of any date in the first appeal where Mr.Shailendra Kumar Singh, Advocate appeared on behalf of the appellant or any document to show that Mr.Shailendra Kumar Singh was engaged by the appellant for the purpose of the Second Appeal. 9. There is thus no material before this Court on the basis of which it can be said that there is a satisfactory explanation for the long delay in preferring this second appeal. 10. The learned Additional District Judge, vide the i