# Inder Singh v. State of Delhi AIR

- **Citation:** (2013) 3 ILRA 1292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-24
- **Case number:** Second Appeal Defective No.50 of 2008
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/inder-singh-v-state-of-delhi-air-42691
- **Pages:** 6

## Headnote

C.P.C.-Section 100- Second Appeal-filed
11
years
7
months
and
7
days
unexplained delay-if delay condonedamount to misuse of process of lawappeal dismissed on ground of delay
itself.

Held: Para-31
In the present case, I do not find any
sufficient reason to condone the delay,
as such, I am of the view that the
judgment cited by the learned counsel
for appellant is of no help to him.

Case Law discussed:
(2005) 4 SCC 741; 2009 AIR SCW 1537; AIR
1998 SC 3222; 2006(24) LCD 1239

## Text

1292 INDIAN LAW REPORTS ALLAHABAD SERIES
Inder Singh Vs. State of Delhi AIR
1978 Supreme Court, 1091, the Apex
Court has held that a reasonable doubt is
not a imaginary, trivial or merely possible
doubt, but a fair doubt based upon reason
and common sense. It must grow out of
the evidence of the case. If a case is
proved perfectly, it is argued that it is
artificial, if a case has some inevitable
flaws because human beings are prone to
err, it is argued that it is too imperfect.
Vague hunches cannot take place of
judicial evaluation.

28. Judging the instant case from the
above parameters it is clear that the
prosecution has not been able to prove the
case beyond reasonable doubt and both
the Courts have erred in convicting the
accused on the basis of evidence available
on record and the appellate court has also
erred in dismissing the appeal.

29. From the above discussion, I am
of the view that the findings of both the
courts below are perverse and not based
on record and liable to be set aside.

30. In the result, the criminal
revision is liable to be allowed, and is
hereby allowed. The revisionist/accused
Ramakant Dubey is acquitted giving
benefit of doubt. The accused is on bail
and he need not surrender before the trial
court.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Second Appeal Defective No.50 of 2008

Badloo Ram

 ...Appellant
Versus
Mishree Lal @ Ram Tej & Ors. Respondents

Counsel for the Petitioner:
Sri D.C. Teiari, Pt. D.R. Shukla

Counsel for the Respondents:
Sri Ashish Mishra

C.P.C.-Section 100- Second Appeal-filed
11
years
7
months
and
7
days
unexplained delay-if delay condonedamount to misuse of process of lawappeal dismissed on ground of delay
itself.

Held: Para-31
In the present case, I do not find any
sufficient reason to condone the delay,
as such, I am of the view that the
judgment cited by the learned counsel
for appellant is of no help to him.

Case Law discussed:
(2005) 4 SCC 741; 2009 AIR SCW 1537; AIR
1998 SC 3222; 2006(24) LCD 1239

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Mr. D.R. Shukla, learned
counsel for appellant as well as Mr.
Ashish Mishra, learned counsel for
respondents and perused the record.

2. This second appeal has been filed
under
Section
100
Code
of
Civil
Procedure (for short 'the Code') against
the judgment and order dated 29.2.1996
passed in Civil Misc. Appeal No. 62 of
1995 (Badloo Ram Vs. Mishree Lal and
Others) arising out of the judgment and
decree
dated
09.01.1995
passed
in
Regular Suit No. 553 of 1991 (Mishree
Lal and Others Vs. Badloo Ram)
whereby the suit filed by the respondentsplaintiffs has been decreed in their favour
and the first appeal preferred against the
said judgment
has
been
dismissed.
3 All] Babloo Ram Vs. Mishree Lal @ Ram Tej & Ors.
1293

3. The appeal has been filed with
reported delay of 11 years, 07 months and
07 days as on 08.02.2008.

4. Objection in the form of counter
affidavit has been filed to the affidavit
filed in support of application for
condonation of delay filed under Section
5 of Indian Limitation Act.

5. Mr. D.R. Shukla, learned counsel
for appellant submits that the suit for
specific performance filed by plaintiffs
was decreed vide judgment and decree
dated 09.01.1995. The appellant being
defendant in the suit, feeling aggrieved,
had filed the first appeal (Civil Misc.
Appeal No. 62 of 1995). The first
appellate Court after hearing the parties
had dismissed the appeal and affirmed the
judgment of the Trial Court.

6. It is submitted that after the
judgment of the appellate Court the
appellant had fallen sick as he had
suffered attack of paralysis. The appellant
was in continuous treatment of Dr.
Tribhuwan Pathak who has certified that
the appellant was in his treatment during
the period 29.2.1996 to 30.6.2006.

7. Submission is that the appellant
due to illness could not approach the
Court in time to file the instant appeal.

8. It is further submitted that after
recovery of health the deponent in the
month of June, 2006 had approached the
learned Court below to obtain certified
copy of the judgment and decree dated
09.01.1995 as well as judgment and order
dated 29.2.1996 and thereafter he had
again suffered paralysis attack and could
not file the appeal. It is also submitted
that it was only in the month of January,
2007 that he had got the second appeal
prepared by his counsel which was
ultimately filed on 08.02.2008.

9. Mr. D.R. Shukla, learned counsel
for appellant emphasized that the medical
certificate submitted along with affidavit
filed in support of application for
condonation of delay is a genuine
document and in case the other side has
any doubt about the authenticity of the
same then the Doctor who has issued the
said certificate may be summoned to
appear before the Court in order to
ascertain the authenticity of the said
document, in this regard he has also
moved an application before this Court.

10. Submission is that the appellant
due to his ill health could not approach
the Court in time and the delay in filing
the appeal is due to bona fide reasons and
deserves to be condoned.

11. Mr. D.R. Shukla, learned
counsel for appellant also submits that he
has filed a better affidavit in order to
explain the delay (without any permission
from the Court). By way of better
affidavit, the appellant wants to explain
that he was a victim of fraud played on
him by his relatives due to which he was
made to believe that proper pairvi in his
case is being done during the period of his
illness and, therefore, he could not
approach the Court under bona fide belief
that in case there is any requirement of
filing an appeal, he would be duly
informed by the person doing pairvi on
his behalf.

12. It is submitted that one Mr. Hira
Lal (witness to deed) who was hand in
glove with the respondents had made the
appellant believed that he is watching the
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant's interest and he need not worry.
He had not option but to believe Mr. Hira
Lal as he was seriously ill.

13. In support of his submissions, Mr.
D.R. Shukla, learned counsel for appellant
relies on the following judgments:

(i) Board of Control for Cricket in
India and Another Vs. Netaji Cricket
Club and Others; (2005) 4 SCC 741,
particularly paragraphs 89, 90 and 91.

(ii) State of Jharkhand & Ors. Vs.
Ashok Kumar Chokhani & Ors.; 2009
AIR SCW 1537, particularly paragraph 3.

(ii)
N.
Balakrishnan
Vs.
M.
Krishnamurthy; AIR 1998 SC 3222,
particularly paragraph 13.

14. Mr. Ashish Mishra, learned
counsel for respondents, on the other
hand, submitted that the plea of illness
taken by the appellant in the affidavit
filed support of his application for
condonation of delay is totally false and
frivolous as during the period 1996 to
2006 when the appellant claims to be
seriously ill due to paralysis attack he was
blessed with four children. This fact has
not been denied by the appellant, although
specifically
averred
in
the
counter
affidavit of the respondents.

15. It is submitted that the medical
certificate annexed with the affidavit filed
in support of application for condonation
of delay is manufactured and concocted
document which does not even bear the
designation of the Medical Officer who is
alleged to have issued the said certificate.

16. Mr. Ashish Mishra, learned
counsel for respondents submitted that the
appellant is educated upto class VIII. He
understands the legal implications and
knows-fully-well the consequences of not
approaching the Court in time. It was
before the Trial Court as well as before
the appellate Court that the appellant had
taken the plea of his ignorance and
illiteracy and had said that he did not
understand the implications of registered
agreement to sale. The Trial Court as well
as the appellate Court have rejected this
plea of the appellant, meaning thereby
that the appellant fully understands the
implications of not approaching the Court
in
time
and
the
consequences
of
inordinate delay in filing the instant
appeal.

17. Mr. Ashish Mishra, learned
counsel for respondents also submitted
that even as per own averment of the
appellant as given in the affidavit filed in
support of application for condonation of
delay, the appellant had approached his
counsel for filing of appeal and had got
the appeal prepared in the month of
January, 2007, however, the said appeal
was filed on 08.02.2008 i.e. after more
than 13 months. It is submitted that the
delay in filing the appeal is to be
explained on day to day basis. The
appellant has not given any reason for not
filing the appeal, although it was prepared
in January, 2007.

18. In support of his submissions,
Mr. Ashish Mishra, learned counsel for
respondents relies on the judgment of this
Court in the case of Sita Ram Vs. Sri
Dhar and Others; [2006 (24) LCD
1239].

19.

I
have
considered
the
submissions made by the parties' counsel
and gone through the records.
3 All] Babloo Ram Vs. Mishree Lal @ Ram Tej & Ors.
1295

20. There is no denying the fact that
the appeal has been filed with reported
delay of more than 11 years, 07 months
and odd as on the date of filing of appeal
i.e. 08.02.2008. The second appeal has
been filed by the appellant-defendant who
has lost in both the Courts below.

21.

The
suit
for
specific
performance
filed
by
respondentsplaintiffs was decreed vide judgment and
decree dated 09.01.1995. The first appeal
i.e. Civil Misc. Appeal No. 62 of 1995
preferred by the present appellant was
dismissed vide impugned judgment and
order dated 29.2.1996.

22. It is to be noted that the plaintiff
thereafter had filed execution case on
10.2.1998. The appellant had put in
appearance in the said case and contested the
said case. The appearance was put by the
appellant in the said case in the year 2006.

23. As per the appellant himself he had
been continuously under medical treatment
during the period 29.2.1996 to 30.6.2006. It
appears that after 30.6.2006, the appellant had
become fit enough to contest the aforesaid
execution case and had put in appearance in
the said case to contest the same.

24. Learned counsel for appellant
has failed to explain as to why the
appellant did not approach this Court for
filing the second appeal immediately after
June, 2006. It is hard to believe that the
appellant on the one hand was fit enough
to contest the execution case by putting
his appearance there but on the other hand
was not fit enough to file the instant
appeal in the year 2006.

25. As per own averments of the
appellant, as given in paragraphs 6 & 7 to
affidavit filed in support of application for
condonation of delay, he had contacted
his Advocate, namely, Mr. D.C. Tiwari
with relevant documents and on his
advice had got the second appeal prepared
in the last week of January, 2007.

26. It is to be noted that the appeal was
ultimately filed on 08.02.2008. There is no
explanation as to why the appeal was not
filed after it was prepared in January, 2007.
The delay in approaching the Court is
required to be explained on day to day basis.

27. The Court time and again has
held that the Court shall be conscious in
condoning the delay, it shall be condoned
only when there are sufficient cause or
proper reason to condone the delay, it
cannot be condoned in a cursory manner.

28. In the case in hand, the appellant
has approached the Court after more than
11 years and 07 months.

29. So far as the contention of
learned counsel for appellant that the
appellant is a victim of fraud played by
his relative who had made him believe
that he is looking after his interest and
doing necessary pairvi in his case is
concerned, suffice is to mention that the
first appeal filed by the appellant was
dismissed on 29.2.1996. The appellant
had fallen sick thereafter, however, the
appellant had put in appearance in
execution case in July, 2006, but he did
not approach this Court and file the
instant appeal at that time, as such, it is
hard to believe that the appellant who is
educated upto class VIII was persuaded
by anyone not to file the appeal in time.

30. So far as the judgments cited by
learned
counsel
for
appellant
are
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, in the case of Board of
Control for Cricket in India and
Another (supra), the Apex Court had the
occasion to consider the meaning of
'sufficient reason'. It has been held by the
Apex Court that 'sufficient reason' would
dependent
upon
the
facts
and
circumstances of the case. The word
'sufficient
reason'
covers
even
the
misconception of fact or law by the Court
or even an Advocate.

31. In the present case, I do not find
any sufficient reason to condone the
delay, as such, I am of the view that the
judgment cited by the learned counsel for
appellant is of no help to him.

32. In the case of State of
Jharkhand & Ors. (supra), the Apex
Court has held that while considering the
application for condonation of delay the
Court shall not go into the merits of the
case.

33. There is no dispute to the said
proposition of law.

34. In the case of N. Balakrishnan
(supra), the Apex Court has observed that
the Court should adopt lenient view while
considering the condonation of delay. The
effort should be to provide an opportunity
to the persons concerned to contest the
case on merit. It has been observed by the
Apex Court that if the explanation does
not smack of mala fides or does not put
forth as part of a dilatory strategy the
Court must show utmost consideration to
the suitor. But when there is reasonable
ground to think that the delay was
occasioned by the party deliberately to
gain time then the Court should lean
against acceptance of the explanation. The
observations made in this regard in
paragraph 13 on reproduction read as
under:

"13. It must be remembered that in
every case of delay there can be some lapse
on the part of the litigant concerned. That
alone is not enough to turn down his plea
and to shut the door against him. If the
explanation does not smack of mala fides or
does not put forth as part of a dilatory
strategy the Court must show utmost
consideration to the suitor. But when there
is reasonable ground to think that the delay
was occasioned by the party deliberately to
gain time then the Court should lean against
acceptance of the explanation. While
condoning the delay the Court should not
forget the opposite party altogether. It must
be borne in mind that he is a loser and he
too would have incurred quite a large
litigation expenses. It would be a salutary
guideline that when Courts condone the
delay due to laches on the part of the
applicant the Court shall compensate the
opposite party for his loss"

35. In the present case, the appeal
has been filed beyond the period of 11
years 07 months and 07 days. Learned
counsel for appellant has failed to give
any sufficient cause to condone the delay.

36. In case the delay is condoned, it
will amount to misuse of process of law,
as such, I am of the view that it is not a fit
case where the delay shall be condoned.

37. Learned counsel for respondents
has cited the judgment of this Court in the
case of Sita Ram (supra) wherein the
Court has observed that it is high time that
a changed perspective and attitude is
adopted particularly when the Courts are
already overburdened with the cases and
the time of the Court is unnecessary
3 All] Hari Krishna Ojha Vs. Smt. Leelawati and Ors.
1297
wasted in dealing with such cases which
have been filed with inordinate delay. The
relevant paragraph 6 of the judgment on
reproduction reads as under:

"6. Previously Courts did show
lenience and latitude in dealing with
applications
for
adjournments
and
condonation of delay. It is high time a
changed perspective and attitude is
adopted, since the Courts are already
overburdened with cases resulting in
inordinate delay in disposal of cases.
Those days of condonation of dalliance
and delay should now be over and in
cases where no sufficient and proper
reason is assigned for delay, the Court
must adopt the stern attitude and refuse
relief. That will also help in transmitting a
message that the Court will no more be
indulgent and parties beware."

38. Considering the entire facts and
circumstances, I am of the considered
view that it is not a fit case where the
delay in filing the appeal is to be
condoned.

39. The second appeal as such is
dismissed on the ground of inordinate
delay.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Civil Revision No. 111 of 2013

Hari Krishna Ojha
 ...Revisionist
Versus
Smt. Leelawati and Ors.
...Opp. Party

Counsel for the Petitioner:
Sri Anil Kumar Srivastava
Counsel for the Respondents:
Sri Atul Mishra, Sri Umeshwar Pratap
Pandey
Sri Waqar Hashim

C.P.C. Section-115--Civil Revision against
rejection of Review Application-as not
maintainable-by accident claim Tribunalprovisions of review contained in order 47
rule
5
not
applicable-by
review
the
revisionist sought review of award-fixing
liability upon the vehicle owner is in
correct-as at the time of accident-offending
vehicle
was
insured-which
was
not
available at that time-held-no procedural
irregularity-when
document
not
filed
inspite of opportunities can not be basis for
review-tribunal
rightly
rejected-revision
itself not maintainable.

Held: Para-29
Since I have come to conclusion that the
evidence relied by the revisionist while
filing the review petition would amount
to re-appreciation of evidence which will
touch the merit of the judgment and
award passed by the Tribunal, as such, I
am of the view that the review petition
filed
by
the
revisionist
was
not
maintainable. The learned Tribunal has
rightly rejected the review petition.

Case Law discussed:
2010 (28) LCD 689; 2010 AICC 465; 2009(27)
LCD 476

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Vakalatnama filed today by Mr.
Waqar Hashim, Advocate on behalf of
respondent no. 8 in Court is taken on record.

2. Heard Mr. Anil Kumar Srivastava,
learned
counsel
for
revisionist,
Mr.
Umeshwar Pratap Pandey, learned counsel
for respondent-claimants, Mr. Atul Misra,
learned counsel for respondent-Driver as
well as Mr. Waqar Hashim, learned counsel
for respondent-Insurance Company and
perused the records.