C.R.P./126/2016 of SARITA DEVI Vs THE STATE (GOVT OF NCT OF DELHI) & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+C.R.P. 126/2016 & CM No.29613-29614/2016SARITA DEVI

..... Petitioner

ThroughMr.Ajay Kalra, Adv.

versus

THE STATE (GOVT OF NCT OF DELHI) & ORS..... Respondent

ThroughMr.Rishikesh Kumar and Mr.PremSagar Pal, Advs. for R-1

CORAM:HON'BLE MR. JUSTICE JAYANT NATH

O R R%16.08.2016CM No. 29614/2016

Exemption allowed, subject to all just exceptions.

C.R.P. 126/2016 & CM No.29613/2016

1.By the present petition the petitioner impugns the order of theappellate court dated 12.7.2016, by which the application filed by thepetitioner under Section 5 of the Limitation Act to condone delay of 234days in filing the accompanying appeal was dismissed.

2.The original petition was filed by respondent No.2 for grant ofSuccession Certificate in her favour for the debts and securities left by ShriBansi Ram who expired on 6.8.2009 in Delhi. The said respondent No.2claimed that deceased was her father. The petitioner who is the wife of late

Shri Bansi Ram had filed an objection stating that respondent No.2 is neithera natural nor adopted daughter of late Shri Bansi Ram. There is no Deed ofAdoption with the consent of the petitioner who is the wife of late ShriBansi Ram. Objections of the petitioner were dismissed and judgment waspronounced on 2.7.2015.

3.The petitioner filed the present appeal under Section 384 read withSection 388 of the Indian Succession Act, 1925 seeking to challenge thejudgment dated 2.7.2015 before the appellate court. There is delay of 234days in filing the appeal. Hence, an application under Section 5 of theLimitation Act was filed. No notice was issued to the respondent and theappellate court dismissed the application noting that the period of limitationprescribed is 30 days from the date of the impugned order. The trial courtconcluded that the facts show gross negligence, deliberate inaction and lackof bona fide on the part of the appellant in filing the appeal within time. Theappellate court noted that the petitioner is teacher by profession and not anilliterate or ignorant of her rights. Her contention that she was not informedof the judgment was not to be believed as the order of the court are availableon internet.

4.I have heard learned counsel for the petitioner and respondent No.1.Respondent No.2 was never served before the trial court.

5.A perusal of the application filed by the appellant under Section 5 ofthe Limitation Act shows that the petitioner has stated the following groundsfor the delay in filing of the appeal:-

“5.That the appellant was not duly informed about thecorrect status of the matter. The appellant on contacting hercounsel in mid of September was given to understand thatthe arguments have been concluded and the judgment has

been reserved.From time to time, on inquiries by theappellant, she was not made aware of the correct positionand as such it was beyond her knowledge that the judgmenthas already been pronounced on 02.07.2015.

6. That the factum of the impugned judgment being passedon 02.07.2015 came to the knowledge of the Appellant whenshe contacted the office of Respondent No.3 i.e. ExecutiveEngineer, P.Division, CPWD, Andrews Ganj, New Delhi inmid January 2016 to inquire about the status of theapplication for grant of pensionary benefits as also the statusof the matter filed in the Ld.Trial Court. The appellant alsovisited the office of Respondent No.3 in this regard inJanuary 2016.As such, it came to the knowledge of theappellant for the first time in January 2016 that the judgmenthas been pronounced as early as on 02.07.2015.Theappellant has accordingly taken immediate steps to engage anew counsel and arrange for the paper book/documentswhich were part of the record of the learned trial court. It isin the aforesaid circumstances that the delay in filing thepresent appeal had occurred. The same is not due to thenegligence on the part of the appellant.”6.The application is supported by an affidavit of the petitioner.Theaverments made in the application show that the petitioner was not informedby her counsel about the judgment having been pronounced on 2.7.2015.The application further elaborates that the petitioner got knowledge of thejudgment when she contacted the Executive Engineer, CPWD, New Delhi inmid January 2016 to inquire about the status of her application for grant ofpensionary benefits. She has thereafter taken steps to file the present appeal.In my opinion, the above grounds would prima facie constitute sufficientcause as stated in section 5 of the limitation Act.Accordingly, theimpugned order suffers from material irregularities.

7.The order dated 12.07.2010 is quashed. The matter is remanded backto the appellate court to be adjudicated upon afresh after due notice torespondent No.2 on the application of the petitioner under Section 5 of theLimitation Act. Petition stands disposed of.

8.Matter be listed before the appellate court on 2.9.2016.

AUGUST 16, 2016

JAYANT NATH, J