* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
14. 11.2014 Date of Decision:
29. 05.2015 + CM(M) 572/2011 & CM No.9312/2011 MAHINDER KAUR & ANR. Through: ..... Petitioners Mr. Praveen Kumar, Adv. versus PAMELA MANMOHAN SINGH & ORS. Through: ..... Respondents Mr. Mahender Rana, Adv. for R-1. CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J.
1. This petition under Article 227 of the Constitution of India, impugns an order dated 05.02.2011 (hereafter „impugned order‟) passed by the Additional District Judge (for short „Appellate Court‟), whereby the petitioners‟ application under Section 14 of the Limitation Act, 1963 (for short „Act‟) was dismissed. Consequently, the petitioners‟ appeal also, bearing No.RCA No.7/2010, against the order dated 30.03.2006 passed by the learned Civil Judge, was dismissed as barred by limitation. Background facts 2. The respondents, being Decree Holders (for short „DHs‟) in Suit No.1080/79, had sought execution of the same. The petitioners resisted the same and filed their objections which were dismissed by the learned Civil Judge on 30.03.2006. In their application under Section 14 of the Act, the petitioners submitted that they were the owners, in possession of property bearing No.6D, Jungpura, New Delhi by virtue of a sale deed in their favour; that on the basis of legal advice, they preferred an appeal before the High Court on 17.04.2006, which was registered as EFA No.13/2006; that on 24.04.2008, while the appeal was pending and the order impugned therein, i.e., execution proceedings had been stayed, the DHs had contended that the appeal was not maintainable before the High Court and it ought to have been filed before the learned District Judge. That by an order dated 24.04.2008, the High Court had directed return of the appeal to the petitioners and observed that the pending applications were to be decided by the Court of competent jurisdiction; since the interim orders in the returned appeal were passed by the Court without jurisdiction, the petitioners had moved an application seeking recall of paragraph 5 of the order dated 24.04.2008 and it was disposed off on 20.05.2008 with the clarification that when “the instant appeal which is directed to be returned to the appellants is re-filed all questions relating to the existence and effect of interim orders would be open to be urged by either party and if urged the learned Court before whom the appeal is filed would decide the same in accordance with law” and that the execution was further stayed by one week. The petitioners had argued that since the appeal was returned only on 23.05.2008, no delay was attributable to them since it was re-filed before the competent court on the very next day; that they had all along acted on the bona fide impression and belief that the advice given to them by their counsel was competent and correct in law. Additionally, it was contended that the time elapsed before the High Court could not be held against them for the purpose of limitation because their appeal was duly registered before the High Court and pursued bonafidely.
3. In reply, respondent No.1/DH had argued that the appeal was not only beyond the period of limitation even since it was filed before the High Court on 18.04.2006 but also because it was instituted before a Court which had no jurisdiction to entertain the same; the petitioners‟ were fully aware that the appeal would lie before a Court having competent pecuniary jurisdiction as the valuation of the suit was less than at Rs.3 lacs; initially, the execution petition was pending before the High Court and on the petitioners‟ objection apropos pecuniary jurisdiction, it was transferred to the learned ADJ; the petitioners, once again, moved an application for want of jurisdiction before the learned ADJ from where the case was transferred to the learned Civil Judge on 12.02.2004; that from the aforesaid facts, it was clear that the petitioners were well aware that an appeal against the order of the learned Civil Judge would lie before the learned District Judge; that with mala fide intention the petitioners had filed the appeal before the High Court in order to delay the execution of the decree and to deprive the DH of the benefits of the decree. It was further argued that the fact that the appeal was not maintainable before the High Court, was clearly in the petitioners‟ knowledge when the order dated 28.05.2007 was passed in EFA No.05/2007, yet, the petitioners pursued the matter for another eleven months till 24.4.2008, when the High Court held that the appeal was not maintainable since it lacked the jurisdiction to entertain the same. Therefore, the petitioners‟ mala fide persistence and upon a deliberate prosecution of a futile procedure could not be condoned in law, as the petitioners themselves had wantonly chosen the path of wastage of strict statutory limits of time.
4. The DH had also taken a preliminary objection that no appeal would lie against the order dated 30.03.2006, whereby the learned Civil Judge had dismissed the petitioners‟ objections under Order XXI, Rules 58 and 97 of the CPC. It was stated that the petitioners were pendente lite transferees under fraudulent, contemptuous and nullity sale deed dated 06.12.1988 and further barred under sections 52 and 6(h) of the Transfer of Property Act, 1882 and section 23 of the Indian Contract Act, 1872. It was further argued that as the very maintainability of the appeal had been seriously questioned by the High Court, the application for condonation of delay in filing the appeal must be decided first; that Section 14 of the Limitation Act is not applicable to appeals and the appeal was otherwise barred by limitation; that the petitioners did not act in good faith and failed to take due care and attention thus they, were not entitled to the exclusion of the period of pendency of the previous appeal which they perniciously pursued to their obvious detriment. It was also contended that the application was not maintainable in view of the petitioners‟ admitted notice and knowledge of the jurisdiction of the Court to which the appeal would lie, as the DHs had objected to the pecuniary jurisdiction of the High Court in the execution proceedings, pursuant to which it was transferred to the learned District Judge. Impugned order 5. At the outset, the Appellate Court was of the view that the petitioners‟ appeal before the High Court was within the period of limitation and thus, the respondent‟s plea in this regard was not sustainable. However, with respect to whether the appeal before the High Court was pursued with due diligence and in good faith, the Court found in the negative. The Court took note of the following facts: a. On 26.09.2003, the High Court had directed the execution petition to be disposed off by the District Court at an early date, when counsel for both the parties were present. b. On 05.01.2004, the learned counsel for the JD had pointed out that the valuation of the suit was less than Rs. 3 lacs. c. The order dated 10.02.2004 of the learned ADJ, revealed that a copy of the plaint was filed by the objector himself to show the valuation of the suit. Accordingly, the case was transferred to the learned Civil Judge as the suit was valued at Rs.1,01,030/-. d. On 28.05.2007, when the respondents/DHs had contended before the High Court that in view of Section 39 (1) (a) (4) of the Delhi High Court (Amendment) Act, 2003, the appeal would not be maintainable before the High Court since the valuation of the suit did not exceed Rs.3 lacs. The petitioners had sought time to study the law on the subject and further, admitted that if the said appeal was not maintainable then the connected matter, i.e., EFA No.13/2006 pending on the same day would also not be maintainable.
6. After perusing the record of the proceedings before the High Court and the learned District Judge, the Appellate Court was of the view that the petitioners were well aware of the valuation of the suit and it was at their behest that the execution proceedings were transferred to the learned Civil Judge. In the facts and circumstances, the Appellate Court was of the view that the petitioners had not acted with due diligence when they filed the appeal before the High Court, instead of filing the same before the learned District Judge. The Appellate Court duly considered the fact that on 28.05.2007, the learned counsel for the respondents had contended that EFA No.05/2007 was not maintainable before the High Court and the same ought to have been filed before the District Court; thereafter, the learned counsel for the petitioners admitted that in the said eventuality, connected appeal bearing EFA No.13/2006 would also not be maintainable. Therefore, the Appellate Court was of the view that after having examined the matter, the petitioners ought to have withdrawn the appeal with liberty to pursue the matter before the Court of competent jurisdiction, instead, the petitioners chose to continue with the non-maintainable appeal with the High Court for another year and it was finally returned on 20.8.2007 during which period, the petitioners continued to enjoy the stay order, which could not be construed as bona fide pursuit of a legal remedy. The Appellate Court found that this period could not be construed as prosecuting a case with due diligence and in good faith because the petitioners had full knowledge that the Court of competent jurisdiction lay elsewhere.
7. The Appellate Court further rejected the petitioners‟ argument that after the appeal was disposed off on 19.02.2007, the respondents had sought recall of the said order and after 28.05.2007, they had sought early hearing of the appeal which means that the respondents had admitted to the High Court‟s jurisdiction. The Appellate Court was of the view that on 28.05.2007 itself, the learned counsel for the respondents had pointed out that the appeal was not maintainable. Reliance was placed by the petitioners on a number of judgments of various High Courts and Supreme Court in support of the proposition that a Court should not go by technicalities but dispose off the matter on merits.1 However, the Appellate Court sought to distinguish them. Instead, the Appellate Court relied upon the dicta of the Supreme Court in Deena v. Bharat Singh,2 which elaborated upon the principle to be examined for granting the benefit under Section 14 of the Act, i.e., a litigant ought to have pursued the prior proceedings with due diligence and good faith. The Appellate Court, in the facts of the case, discussion thereon and the material on record, was of the view that the petitioners had opted not to withdraw the appeal from the High Court even after being informed about its non-maintainability. Therefore, the Appellate Court held it could not be considered as pursuing the case with due diligence and in good faith. Hence, it was held that the petitioners were not entitled to exclusion of time of the proceedings before the High Court. Contentions 8. The learned counsel for the petitioner argues that the entire case would need to be examined on the facts and not merely on the technical basis on which the appeal was dismissed by the impugned order. He submits that on 6th December, 1988, Mr. K.V. Kohli executed three sale deeds in favour of M/s. Texla Service Centre. He had done so on the basis of Will propounded by him. M/s. Taxla Service Centre withdrew its suit under Section 6 and 19 of the Specific 1 Mohd. Malik v. Rehman Baba, AIR1959J&K30 Firm Purushottam Das Ganpati v. Gulab Khan, AIR1963Patna 407; Raghubir Jha v. State, 1986 RLR36(NSC); Shin-Etsu Chemicals v. Vindhya Telelinks, 2009 RLR36(NSC); Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department 2008 (6) SCALE748 R.B. Ramalingum v. R.B. Bhavneshwari, 2009 RCR (1) 136 (SC); Improvement Trust v. Ujagar Singh, 2010 RLR498(SC) 2 AIR2002SC2768Performance Act since the sales deeds have been executed on 1.9.2009 i.e. Suit No.182/86. On 11.8.1989 Execution Case No.14/1985 was dismissed in default. In the year 1989, the respondent No.1 filed a suit disputing the Will propounded by her brother Mr. K.V. Kohli. She sought 50% of the suit property on the basis of a Will set up by her. In the alternative she sought that insofar as the Will propounded by her brother was conceived, she would only get 1/3rd and 2/3rd share would go to her brother but she would inherit her mother‟s share also, nevertheless her 1/3rd share, admitted in her favour as per the Will propounded by her brother Sh. K.V.Kohli, could not have been sold out to the objector. On 23rd September, 1996, the Execution Petition was filed in the face of section 240 of the Indian Succession Act which bars proceedings upon the decree unless probate has been granted or her rights had not been crystallized, the proceedings could not continue.
9. The learned counsel for the petitioners submits that the petitioners are illiterate and upon their counsel‟s advice, preferred an appeal before the High Court which was registered as EFA No.13/2006 and interim stay was granted on 18.04.2006; that a compromise was arrived at between the parties and the said appeal was disposed off; that the compromise was not acceptable to the other petitioners, therefore, they moved applications for recall of the compromise order which remained pending in the record of the said appeal. He further submits that in the interim, one of the LRs of the petitioners filed a separate appeal bearing EFA No.5/2007; that on 28.05.2007, the respondents took an objection to the maintainability of the said appeal and contended that it would lie before the District Court; and on 24.04.2008, this Court directed return of both the appeals. He further submits that the Appellate Court erred in not considering the fact that the petitioners could not have withdrawn the appeal on 28.05.2007, when an objection to its maintainability was raised since: a. EFA No.13/2006 was lying disposed off vide order dated 19.02.2007 and the disposed off appeal could not have been withdrawn and filed unless restored, which happened on 24.04.2008 and 20.05.2008 and the appeal was immediately filed on the next day of return. b. Admittedly, no objection with respect to the maintainability was raised in EFA132006 till 24.04.2008.
10. In support of his contentions, the learned counsel for the petitioners, inter alia, relies upon a number of judgments.3 11. The learned counsel for respondent No.1/DH contends that the petitioners were not entitled to the exclusion of time under Section 14 of the Act and has argued in support of the impugned order. He, inter alia, relies upon a number of judgments too.4 Conclusion 12. The limited issue before this Court is whether the petitioners were entitled to the exclusion of time for pursuing their appeal before the High Court which had no jurisdiction to entertain the same?. Consequently, whether the Appellate Court ought to have entertained the petitioners appeal and to have disposed it off on merits?.
13. Having regard to the definition of a suit and an application under Sections 2(l) and 2(b) of the Act respectively, it is amply clear that Section 14 of the Act, per se, would not be applicable to appeals. However, it has been held that the 3 J Kumaradasan Nair & Anr. v. IRIC Sohan & Ors., AIR2009SC1333 Shin- Etsu Chemical Co. Ltd. v. Vindhya Telelinks Ltd. & Ors., AIR2009SC3284 Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors., (2008) 7 SCC1694 Debjyoti Gupta v. Indiabulls Securities Ltd. & Anr., (2013) 202 DLT563 Ketan V. Parekh v. Special Director, Directorate of Enforcement and Anr., AIR2012SC683 Union of India v. M/s. Damyanti Builders & Anr., (2010) VII AD (Delhi) 140; Mohinder Prakash v. DLF Commercial Developers Ltd., (2012) 195 DLT357 Jitender Kumar Gupta v. Sukhbir Singh Saini, (2012) 192 DLT438 Ramji Pandey & Ors. v. Swaran Kali, AIR2011SC489 J.
H. Nelson v. S. Thkur Singh, (1967) LXIX PLR64principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or a revision in terms of Section 5 of the Act.5 14. In order to appreciate the rival contentions, it would be worthwhile to examine the relevant provisions of the Act in particular thereof which section 14 deals with exclusion of time of proceeding bona fide in a Court without jurisdiction. For entitlement of the benefit under the said provision, both the prior and subsequent proceedings must be civil proceedings prosecuted by the same party; the prior proceeding must have been prosecuted with due diligence and in good faith; the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; the earlier and latter proceeding must relate to the same matter in issue; and both the proceedings must be in a Court. 6 Under Section 5 of the Act, any appeal or application, except one under Order XXI of the CPC, may be admitted after the prescribed period if the party satisfies the Court that it had sufficient cause for not preferring the appeal or application within such period. Explanation to it provides that if such party was misled by any order, practice or judgment of the High Court, such fact may constitute sufficient cause within the meaning of this section.
15. Accordingly, what needs to be determined is whether the petitioners prosecuted their appeal before High Court with due diligence and in good faith. Due diligence and caution are essential prerequisites for attracting Section 14 of the Act. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances.7 Under Section 2(h) of the Act, nothing shall be deemed to be done in good faith which is not done with due care and attention.
16. At this stage, reference to the factual matrix of the present case would be appropriate. The order dated 23.09.2003 of the High Court reveals that the 5 J.Kumaradasan Nair & Anr. v. IRIC Sohan & Ors., AIR2009SC1333Consolidated Engineering (supra) 7 Consolidated Engineering (supra) 6 execution petition pending before it had been transferred to the District Court in view of Section 2 of the Delhi High Court (Amendment) Act, 2003. Thereafter, the execution proceedings had been transferred to the learned Civil Judge vide order dated 10.02.2004 since the District Court lacked the jurisdiction to entertain the same. It is noteworthy that a copy of the plaint had been filed by the objector(s)/petitioners themselves to show the valuation of the suit. The learned counsel for the objectors/petitioners was also present when the order dated 10.02.2004 was passed. This would imply that the petitioners were always aware of the law, i.e., Delhi High Court (Amendment) Act, 2003 and were beneficiaries of sound legal assistance. Therefore, it cannot be said that the appeal against the order dated 30.06.2006 was filed before the High Court upon incorrect legal advice or due to inadvertence. The High Court also granted an interim stay on 18.04.2006 in favour of the petitioners. An objection to the maintainability of the connected appeal bearing EFA No.5/2007 was raised on 28.05.2007 wherein the learned counsel for the petitioners had sought time to study the matter. The learned counsel had admitted that if EFA No.5/2007 was not maintainable, then the connected appeal bearing EFA No.13/2006 would also not be maintainable. This Court would notice that on 28.05.2007, when the connected appeals bearing EFA Nos. 13/2006 and 5/2007 were taken up, counsel for the petitioners (appellants therein) in both the cases were present. Therefore, it cannot be said that the petitioners were not aware of the fact that their appeal was not maintainable. Accordingly, the submission of the learned counsel for the petitioners that no objection apropos the maintainability of EFA No.13/2006 was taken is without substance is untenable.
17. The learned counsel for the petitioners had argued that the petitioners are illiterate and upon mistaken advice from their counsel, had filed the appeal before the High Court instead of the District Court. It is settled law that mistake of the counsel in certain circumstances may be taken into consideration for the purpose of condonation of delay. However, there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. 8 In M/s. K. G. Khosla & Co. v. The Trustees of the Port of Bombay9, a Division Bench of this Court held as under:
“Judged by the above test, the mere statements made by Shri Thadhani and Shri Vakil that the respondents were legally advised to file the suit at Bombay are of no use to the respondents in claiming the benefit of section 14(1). It was necessary for the respondents to show that the mistake made by the Legal Adviser, whoever he may be, was a bona fide one. For that purpose, the Legal Adviser should have been examined to explain how the mistake was made by him in good faith. The Legal Adviser was not examined. He was not even named. If Shri Vakil was the Legal Adviser, then Shri Vakil should have said that it was he who gave legal advice to the respondents. Had he said so, then he would naturally have been required to explain his reasons for giving such advice. For, legal advice has no meaning if it is not supported by reasons. In the absence of reasons, it is no advice at all. Therefore, even if we believe that some legal adviser or Shri Vakil gave such advice to the respondents, we would be still unable to give the respondents the benefit of section 14(1) inasmuch as we would still not be satisfied that such wrong legal advice will be given in good faith.”
18. In another case10, a Division Bench of this Court held as under:
“The averment that under legal advice and bona fide belief the tenant thought than only an appeal lay against the ex-parte order was, in my opinion, on the facts and circumstances of this case wholly futile. There was no disclosure made in the application as to which legal adviser had given the said advice. In a case of the present type, it was incumbent on the tenant to give full particulars 8 Mata Din v. A. Narayanan, AIR1970SC19531970 (2) DEL60J.H.Nelson (supra) 9 ILR10of the legal advice and if possible to support it by an affidavit of the legal adviser that he had given such advice after due care and attention. Mere broad and general plea that the tenant had under legal advice and bona fide belief been prosecuting with the due diligence another proceeding for the getting the ex-parte order set aside is, in my opinion, not enough on the facts and circumstances of the present case. Due diligence and caution are, in my view, essential pre-requisites before section 14, Limitation Act, can be attracted. The litigants seeking relief under section 5, Limitation Act, on the ground of mistaken advice of their counsel must place material before the Court from which it is possible to deduce that the counsel acted in “good faith”; in other words, with “due care and attention”. A mistake due to negligence or want of reasonable skill can scarcely be considered to fall within the definition of good faith as defined in the Limitation Act.”
19. This Court has perused the petitioner‟s application under Section 14 of the Act which was filed before the Appellate Court. All it avers is that the petitioners were under the bona fide belief and impression that the legal advice given to them was correct, i.e., the appeal lay before the High Court. This Court finds this averment to be general and vague. There is no mention of the details of such counsel/lawyer who had advised them to do so. As has been discussed hereinabove, the petitioners ought to have placed material before the Court from which it is possible to infer that the counsel/lawyer acted in good faith or with due care and attention. Having not done so, the petitioners cannot claim that the appeal before the High Court was filed due to mistaken legal advice. Consequently, they cannot claim the benefit under Section 14 of the Act.
20. The submission of the learned counsel for the petitioners that the appeal was lying disposed off and hence, it could not have been withdrawn and re-filed needs to be rejected. The necessary criterion for the invocation of Section 14 of the Act is that the party must have been diligent and should have acted bonafidely. It is evident from the records of the case that the petitioners took no steps to bring it to the knowledge of the High Court that the appeal was not maintainable. Instead, they chose to sit over the non-maintainable appeal till 24.04.2008/20.05.2008, when it was finally returned to them for presentation before the Court of competent jurisdiction, which could not be termed as prosecuting the case with the due diligence and in good faith.
21. At this juncture, it would be apposite to refer to a Division Bench judgment of the Allahabad High Court in Jagannath Prasad v. Sant Hardasram Sevashram & Ors., AIR1978All 250,which held as under:
“5. In short, the rule appears to be that where any mistake with regard to the forum of presenting an appeal has been committed and the court is satisfied on the facts of the case that this was either due to some forgetfulness or oversight or uncertainly as to the law regarding the forum for presenting the appeal, then it may be fit case for applying the provisions of Section 14 of the Limitation Act. On the contrary, where the law is plain and does not admit of any doubt and the appellant or his agent could not possibly have any illusion as to the appropriate forum for presenting appeal, it would be a case of palpable negligence and would not be covered by the provisions of Section 14 of the Limitation Act. All that one had to do in the instant case was to have a look at the valuation of the appeal and thereafter the forum was as clear as day light. We gave repeated opportunities to the appellants to explain to the Court by filing an affidavit of the counsel concerned, if necessary, which may throw light as to the circumstances in which this error was committed. We are constrained to remark that notwithstanding sufficient opportunity being given to the appellant no satisfactory explanation is forthcoming as to why the appeal was presented to the District Judge instead of filing it in the High Court inasmuch as the valuation of the appeal was Rs. 29,617.10. An appeal with a valuation of Rs. 20,000/- or more obviously lay to the High Court......................................... In view of the averments made in the affidavits filed before us we are unable to accept the submission made at the Bar that it was the wrong advice given by the counsel which led to this unfortunate error. No Counsel has either come before this Court or filed any affidavit indicating any such mistake on his part. We have already discussed that this was a case of patent and gross negligence where a mere look at the valuation of the appeal would have indicated beyond doubt the proper forum for presenting the appeal. Even more significant is the fact that soon after presenting the appeal the mistake was not realised by the appellant or his counsel. On the other hand, they appeared to have been somewhat complacent and on one occasion actually asked for time to reply to the objection filed on behalf of the respondent at a very early stage of the suit, viz., that the appeal was not maintainable in that Court. Thus, the appellant has utterly failed to show that he had been prosecuting with due diligence another civil proceeding and that he had acted in good faith. His conduct falls short of the standard of due care and attention attributed to an ordinary and prudent person. Therefore, the appellant is not entitled to the benefit of Section 14 of the Limitation Act. It is true that Section 14 in terms applies to suits and not to appeals but in substance the same principle may be applied. That is why the application has been made under Section 5 read with Section 14 of the Limitation Act. Even for successfully invoking the benefit of Section 5, the appellant has to make out sufficient cause and therefore, reckless or grossly negligent conduct of the appellant would be inconsistent with such sufficient cause.”
22. In the present case, the petitioners only had to look at the valuation of the case to determine the forum to which the appeal would lie. The law in this regard is plain and clear. The bonafide and prudent course may well have been for the petitioners to promptly withdraw the appeal from the High Court and to seek remedial measures if any such remedy was available to them. The petitioners conduct show a cavalier approach to the strict law of limitation and betrays a lack of requisite diligence. He is not entitled to the benefit under section 14 of the Limitation Act, which otherwise is reserved only to those cases which were pursued bonafidely, in good faith and with due diligence before a court lacking jurisdiction. All the qualifying characteristics are missing from the petitioners‟ case. Hence, the case would not be covered under Section 14 of the Act.
23. For the reasons stated hereinabove, this Court is of the view that the petitioners were not prosecuting their appeal before the High Court bonafidely. Instead, of showing good faith which is a sine qua non for benefit under Section 14 of the Act the petitioners‟ conduct shows complete absence thereof. The petitioners have not made out a case for the exercise of power of superintendence of this Court under Article 227 of the Constitution of India. The view taken in the impugned order is plausible in law; it does not suffer from material irregularity. The petition is without merit and is accordingly dismissed with exemplary costs of Rs.1 lakh (Rupees One Lakh), to be paid to respondents within eight weeks. NAJMI WAZIRI (JUDGE) MAY29 2015/vmk/ak