MEHTAB SINGH Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) THIS is a regular second appeal under Section 100 CPC against the judgment and decree dated 28.8.2010 passed by the learned Additional District Judge, (Central District 13), Tis Hazari Courts in R.C.A. No. 91/2009 titled Union of India & Ors. vs. Mehtab Singh by virtue of which the judgment and decree dated 4.9.2009 passed by the learned Senior Civil Judge cum Rent Controller, Central Delhi, was set aside and the suit filed by the appellant/plaintiff was dismissed. It may be pertinent here to mention that the appellant/plaintiff had filed a suit for declaration praying therein for setting aside his order of dismissal from service dated 21.7.2000 and the order of the appellate authority confirming the dismissal passed on 9.3.2001.

(2.) THE regular second appeal has been filed along with the application (C.M. No. 289/2012) seeking codonation of 366 days' delay in re -filing, although, it has been averred in the application that the original filing of the appeal was done within the period of limitation. In the application seeking condonation of delay in re -filing it is alleged that the judgment was passed on 28.8.2010 and the appeal was filed on 30.11.2010 challenging the judgment dated 28.8.2010. Since the objections were raised to the appeal, it was collected from the Registry and re -filed on two occasions on 7.12.2010 and 16.12.2010. It is further alleged that third time also there were objections and accordingly, the appeal was collected from the Registry on 22.12.2010, that is, one day before the winter vacation. It is stated that the departmental proceedings which were initiated against the appellant were in Hindi and their English translation was to be filed and the file was not traceable in the lawyer's office. It is stated that the counsel for the appellant applied for certified copy of the entire file of appeal in the court of the learned Additional District Judge on 25.3.2011 and the certified copy was made available on 30.3.2011. It is further stated that inadvertently, the trial court record was not obtained with the result whatever documents were available with the appellant, were handed over to the counsel for the purpose of getting them translated. In the meantime, the case file got tagged mistakenly with some disposed of cases/files, and these files were shifted from old chamber at Tis Hazari to the store at his residence. It is stated that the file was traced only in the month of December, 2011 and this occasioned delay of 366 days' in re -filing the appeal.

(3.) THE respondent filed reply to the application and contested the stand of the appellant. It was stated in the reply that the appellant had been grossly negligent in pursuing the appeal. According to the admission made by the appellant himself, the appeal was filed three times before the courts rose for winter vacation and even on these three occasions, the objections could not be removed. The appellant had admittedly collected the copy of the appeal lying in objection on the last working date before the winter vacation and chosen to remain silent till 25.3.2011 when certified copy of the appellate court's record was applied. Even at that stage, the record of the trial court was not applied for. It has also been stated that it is a common knowledge that the entire record is not required to be filed, what is required to be filed along with the second appeal, is the documents on which the appellant is relying on. A prayer could have been made by the appellant for requisition of the trial court record. It is further stated that the explanation given by the appellant is neither bona fide nor convincing which may constitute the sufficient cause. Accordingly, it is prayed that the application for condonation of delay be dismissed.