TENZING KELSANG KALDEN Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Cross Objector/Petitioner herein has filed the instant application under Sec. 5 of the Limitation Act, 1963, seeking condonation of delay of 1946 days in filing the present Cross Objection. The Petitioner was substituted vide Order of this Court dtd. 8/12/2021 as the legal representative of his deceased father, Rinzing Dadul Kalden who was the original Respondent No.3 in RFA No.15 of 2016,.

(2.) Learned Counsel for the Petitioner enumerating the grounds for the delay in filing the Cross Objection contended that initially I.A. No.01 of 2022 was filed wherein the delay was computed as "99 days" and withdrawn on the realisation that the original Respondent No.3 had been served with Notice on 10-11- 2006, following which the delay was computed as "1946 days" and the instant I.A. being I.A. No.02 of 2022 was filed accordingly. That, the Appeal being RFA No.15 of 2016 was admitted on 24-03- 2017, but the father of the Petitioner did not enter appearance neither was he represented by Counsel during his lifetime. Vide Order of this Court dtd. 11/6/2018, RFA No.15 of 2016 was kept in abeyance, in terms of the Order of the Hon'ble Supreme Court in State of Haryana and Others v. M/s. G. D. Goenka Tourism Corporation Limited and Another Special Leave to Appeal (C) No.5552 of 2018 arising out of CC No.8453 of 2017, dtd. 21/2/2018. That, till 2019 the Cross Objector was in Bangalore and unaware of the pendency of the instant case which he came to learn only after the demise of his father on 22/8/2020. He then approached the Counsel on record representing Respondent Nos.1, 2, 4 and 5 (in the said RFA), who however expressed his inability to represent the Cross Objector. On his substitution on 8/12/2021 the Petitioner was unable to appear in the Court on the dates fixed on account of his mother's surgery on 1/12/2021 and the necessity for him to stay with her constantly during her recuperation and other health issues that plagued her then. The Winter Vacation of the Court followed during which period Learned Counsel for the Petitioner was at Ravangla, consequently he could meet her only in the first week of March, 2022, upon which Cross Objection came to be filed on 16/4/2022. That, the delay in filing the Cross Objection was not due to negligence on his part but due to the bona fide reasons mentioned above. It was urged that no prejudice would be caused to any party in the matter as the Respondent Nos.1 and 2 in RFA No.15 of 2016 have already filed their joint Cross Objection being C.O. No.05 of 2016, against the issues that have been decided against them which are identical to the issues assailed by the Petitioner. That, the Appeal and the Cross Objection are yet to be heard. That, the grounds put forth hereinabove qualify as "sufficient cause" to explain the delay which in the interest of justice may be condoned. To buttress her submissions, reliance was placed on The Dean, I. K. Gujral Punjab Technical University v. Sikkim Students Welfare Association of Chandigarh and Others SLR 2020 Sikkim 652.

(3.) Contesting the submissions put forth by Learned Counsel for the Petitioner, Learned Additional Advocate General appearing for the State-Respondent Nos.1 to 4 submitted that the original Respondent No.3 did not appear before this Court although Notice was served on him on 10/11/2016, nor did he enter appearance before the Learned Trial Court, indicating his indifference in the matter. On 22/11/2021, the Petitioner herein suddenly appeared on the demise of Respondent No.3 on 22-08- 2020 and was substituted vide Order of this Court dated 08-12- 2021, after which, rather belatedly the Cross Objection was filed on 16/4/2022, along with an application seeking condonation of delay. The grounds agitated by the Petitioner are insufficient for condoning the delay as the Petitioner 'believes' that his father could not put in his appearance due to ill-health, revealing that he was unaware of his father's health which thereby raises doubts about the alleged claim of ill-health. Besides which, no medical documents buttress the Petitioner's submissions regarding his parents €Ÿ ill-health. That, in the interregnum the fruits of the Decree have ripened and the applecart will be disturbed by the acceptance of the Petitioner's pleas of delay and his Cross Objection. To buttress his submissions, reliance was placed on Estate Officer, Haryana Urban Development Authority and Another v. Gopi Chand Atreja 2019 4 SCC 612. That, where there is inordinate delay the Petition cannot be allowed for which reliance was placed on D. Gopinathan Pillai v. State of Kerala and Another 2007 2 SCC 322. Reliance was also placed on Basawaraj and Another v. Special Land Acquisition Officer 2013 14 SCC 81, University of Delhi v. Union of India and Others 2020 13 SCC 745 and Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others 2013 12 SCC 649 which lay down the grounds for consideration of a delay petition. That, the Petition lacking in bona fides and inadequacy of sufficient grounds, deserves a dismissal.