HUDA AND ORS. Vs. KAWAL BEDI EDUCATION SOCIETY

JUDGEMENT

(1.) In this regular second appeal, there is CM No. 4180-C of 2011 under Section 5 of the Limitation Act for condonation of delay of 203 days in filing the appeal and yet another CM No. 4181-C of 2011 under Section 151 CPC for condonation of 147 days delay in re-filing the appeal. Before adjudicating the matter of limitation, brief resume of the facts requires to be undertaken. Suit of the plaintiff, respondent herein, filed on 3.3.2007, inter alia, against HUDA, Panchkula was for seeking declaration that he being the highest bidder of land in Sector 40, Gurgaon for a total sum of Rs. 35,90,000/- and having deposited a sum of Rs. 3,59,000/- as 10% of the bid amount at the spot on 9.7.2001 and having complied with terms and conditions of the allotment, was wrongly not allotted the plot on the ground that it had not submitted the requisite registration certificate of the society. For forfeiture of amount of Rs. 3,59,000/- deposited as earnest money, it had made representation on 16.11.2001 and when no action was taken, appeal was preferred before the Administrator, HUDA, defendant- respondent No. 2. Subsequently, the suit was preferred by the plaintiff for seeking declaration that he was a lawful allottee of the plot. After hearing counsel for the parties, suit of the plaintiff was dismissed on 13.6.2008. Against the said judgment and decree, an appeal was preferred by the plaintiff on 18.9.2008. The appellate court found that when even written statement had not been furnished by the defendant in the suit, the court was to pass a decree under Order VIII Rule 10 CPC. In short, the appeal was accepted, impugned memo dated 29.10.2001 was set aside directing the defendant to allot a plot to the plaintiff in Sector 40 Gurgaon. Regular second appeal in this court against the judgment and decree dated 10.8.2009 of the first appellate court was preferred in this Court, seeking condonation of delay, as mentioned earlier.

(2.) Counsel for the applicant-appellants has urged that delay could not be avoided despite best efforts made in this behalf as no information could reach them through their counsel resulting in delayed filing and refiling of the accompanying appeal.

(3.) This claim has been contested by the respondent tooth and nail. Whereas, Counsel for the appellants has urged that despite sincere efforts, delay emerged, Counsel for the respondent has claimed that it was avoidable delay and application for condonation of delay should be dismissed. Support has been sought from Chief Administrator, Hilda v. Satpal, 2011 1 RCR(Civ) 306, Union of India v. Nripen Sharma 2011 (0) AI-JEL-SC 49443, Office of the Chief Post Master General & Others v. Living Media India Ltd. & Another, 2012 2 SCT 269and Haryana Urban Development Authority and Another v. Phiraya Lal Khanduja and Others, 2011 1 RCR(Civ) 685.