RSA No.3890 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3890 of 2008 Date of decision: 1.11.2010 HUDA and another ......Appellant(s) Versus Jagdish Raj Sharma and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. J.P. Sharma, Advocate for Mr. Vikram Jain, Advocate for the appellants. Mr. K.D.S Hooda, Advocate for the respondents. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for declaration, mandatory injunction and permanent injunction, was partly decreed. As per the averments, the plaintiff-respondents were owners in possession of the suit property which was purchased in open auction for a sum of ` 6,13,000/- It was further pleaded that despite the payment of 25% of the amount, defendant-appellants failed to give the possession of the property in dispute in time. It was further averred that initially there was delay in payment of six monthly installments and when the plaintiffs approached the appellants to deposit the same, they refused to accept and demanded penal interest on the installments. The plaintiffs made a representation but an order dated 13.5.2003 was passed without paying any heed to their request. It was alleged that the aforesaid order of resumption was illegal, null and void. The plaintiffs filed an appeal before RSA No.3890 of 2008 2 the Administrator, HUDA which was also dismissed. Hence the necessity arose to file the present suit. Upon notice, the appellants appeared and filed written statement raising various preliminary objections. On merits, it was averred that the property in dispute was resumed vide order dated 13.5.2003. The appeal filed by the plaintiff-respondents was dismissed on 9.1.2004. It was alleged that after depositing of 25% amount of auction money, the plaintiff-respondents failed to pay the installments and an amount of `21,52,150 was outstanding against them. It was averred that impugned order was rightly passed. Dismissal of the suit was prayed. No replication was filed. On the pleadings of the parties, the following issues were framed: “1. Whether the order dated 13.5.2003 and 9.1.2004 passed by defendants are illegal, null and void are liable to be set aside? OPP 2. Whether the notice u/s 18(1)(B) of the Haryana Urban Development Authority Act, 1977 dated 24.6.2003 is illegal? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the jurisdiction of the civil court is barred u/s 50 of the HUDA Act, 1977? OPD 5. Whether the plaintiffs have concealed material facts from the court? If so to what effect? OPD 6. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD 7. Relief.” The parties led evidence in support of their respective case. RSA No.3890 of 2008 3 After hearing learned counsel for the parties and considering the evidence on record, the trial Court found that as per the conditions in the allotment letter, there was no recital to charge compound interest at the rate of 18% by the appellants and they could charge only 10% simple interest as per the judgment of the Hon’ble Supreme Court in Roochika Ceremics v. HUDA 2001 (2) RCR (Civil) 617. It was also held that the order of resumption was too harsh and the plaintiff-respondents have also paid additional interest @ 8% and the appellants could impose penalty on the allottees for non-payment of balance consideration in time. The relevant part of the findings of the trial court on issues No.1 and 2 are reads as under: “Under these circumstances, defendants have not been able to show that interest at the rate of 18% could be charged by them from the plaintiffs/allottees. They i.e. defendants could, however, impose penalty on the allottees for non payment of balance consideration in time. Accordingly, issues Nos.1 & 2 are decided in favour of the plaintiffs. However, defendants shall be at liberty to impose penalty on the plaintiffs, as per rules. The amount which has already been deposited by the plaintiffs i.e additional interest at the rate of 8%, the same shall remain deposited with the defendants till such time penalty amount which is to be imposed on the plaintiff is calculated and intimated to them. For this purpose, defendants are granted a period of 30 days. The amount which already stands deposited with the defendants shall be adjusted towards this penalty amount and if the plaintiffs have already paid extra RSA No.3890 of 2008 4 mount, the same shall be refunded to them by the defendants. If anything further is due from the plaintiffs, then same shall be paid by the plaintiffs within a period of 30 days from the date of intimation of calculation Possession of the booth in question shall remain with the plaintiffs till then and if the demand raised by defendants as per calculation is not fulfilled within stipulated period, then defendants shall be entitled to resume the booth in question, in due course of law.” Issues No.3 to 6 were not pressed by the appellants. On the basis of the findings aforesaid, the suit of the plaintiff-respondents was decreed as under:- “As a consequence of my above discussion on the issues mentioned above, suit of the plaintiffs succeeds and is partly decreed with costs to the effect that orders dated 13.5.2003, 9.1.2004 and notice u/s 18(1)(B) of the Haryana Urban Development Authority Act, 1977 dated 24.6.2003 issued by defendants are illegal, null and void. The defendants are restrained from interfering into the possession of the plaintiffs over the booth in question. However, defendants shall be at liberty to impose penalty on the plaintiffs, as per rules. The amount which has already been deposited by the plaintiffs i.e. additional interest at the rate of 8%, the same shall remain deposited with the defendants till such time penalty amount which is to be imposed on the plaintiffs is calculated and intimated to them. For this purpose, defendants are granted a period of 30 days. RSA No.3890 of 2008 5 The amount which already stands deposited with the defendants shall be adjusted towards this penalty amount and if the plaintiffs have already paid extra amount, the same shall be refunded to them by the defendants. If anything further is due from the plaintiffs, then same shall be paid by the plaintiffs within a period of 30 days from the date of intimation of calculation. Possession of the booth in question shall remain with the plaintiff till then and if the demand raised by defendants as per calculation is not fulfilled within stipulated period, then defendants shall be entitled to resume the booth in question, in due course of law. Decree sheet be drawn accordingly.” Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellants filed Civil Appeal No.133 of 2007 before the Lower Appellate Court. However, the said appeal was filed after a delay of 130 days after expiry of period of limitation. Not only this, Civil Appeal No.75 of 2007 filed by the plaintiff-respondents against the aforesaid judgment and decree of the trial Court was also dismissed by the Lower Appellate Court on 6.11.2007 in the presence of the appellants wherein the Lower Appellate Court observed as under: “Legality of the decree on merits has not been questioned either by the plaintiffs or by the defendants and, therefore, this decree has become final.” The appeal filed by the defendant-appellants was dismissed by the Lower Appellate Court holding the same to be barred by time and not maintainable on merits, noticing the fact that the appellants had failed to justify the delay in filing the appeal and the fact that the Lower Appellate RSA No.3890 of 2008 6 Court had already upheld the judgment and decree of the trial Court which was dismissed. Still not satisfied, the appellants have filed the instant appeal submitting that the substantial questions of law arise in this appeal: “(a) Whether the respondent-plaintiffs are bound by the terms and conditions of allotment as contained in the allotment letter? (b) Whether the respondent-plaintiffs are willful defaulters of terms and conditions of allotment? (c ) Whether the appellant-defendant has validly invoked its jurisdiction by way of impugned resumption and issue of notice under Section 18(1)(b) of HUDA Act, 1977? (d) Whether the learned Appellate Court below has erred in summary rejection of appeal by the appellant- defendant, which would prejudice and defeat the cause of substantial justice and public interest?” I have heard the learned counsel for the parties. Learned counsel for the appellants has vehemently argued that the order passed by the Lower Appellate Court while rejecting the application for condonation of delay was totally vague, non-speaking perverse and defeats the cause of substantial justice. Elaborating further his argument, learned counsel for the appellants has argued that a liberal approach should have been applied by the Lower Appellate Court while considering the question of condonation of delay on application filed by the State as in the case of State of Haryana v. Chandra Mani and others, AIR 1996 SC 1623, it was held that when the State is an applicant praying for condonation of delay, it is common knowledge that on account of RSA No.3890 of 2008 7 impersonal machinery and the inherited bureaucratic methodology, it is axiomatic that decisions are taken at slow pace and encumbered process of pushing the files from table to table, causing delay is a routine and is a common feature and therefore, certain amount of latitude should have been given. On the other hand, learned counsel appearing on behalf of the respondents has vehemently contested this appeal and has supported the impugned judgment. On the basis of the arguments raised, the only substantial question of law which arises in this appeal is framed as under: “Whether the learned Lower Appellate Court was right in dismissing the application under Section 5 of the Limitation Act for condoning the delay of 130 days and in failing to decide the case on merit?” Other substantial questions of law were also taken in the grounds of appeal, but they do not arise for consideration as the appeal filed by the appellants was dismissed being time barred. The Hon'ble Supreme Court in the case of Union of India Vs. Vidarbhavenaer Industries 1994 Supp.(2)SCC 696 has been pleased to lay down that for seeking condonation of delay the party is to plead the facts constituting 'sufficient cause' and in the absence thereof delay cannot be condoned. Hon'ble Supreme Court again in the case of State of Rajasthan and anr Vs. Jaimal 1991 Supp.(2)SCC 286, has been pleased to lay down that vague and general explanation is unacceptable, and in the absence satisfactory explanation, no ground can be made out to condone the delay. Thus, It would be seen, that though law is settled, that liberal RSA No.3890 of 2008 8 interpretation is to be given to the sufficient cause but at the same time the limitation prescribed for filing an appeal cannot be ignored. The decision is to be taken by the court on the facts and circumstances of each case. If in view of the proposition of settled law and facts of case are seen, it would show, that absolutely no detail was given as to how the delay had occurred and whether the same was justified or not. Mere assertion that the delay occurred due to administrative procedure involved cannot be said to be 'sufficient cause' to condone the delay. In RSA No.3078 of 2009 (Estate Officer HUDA and others v. Harinder Kumar), decided on 26.8.2010, this Court observed as under: “The proposition of law cannot be disputed. However, it is also settled law that the expression 'sufficient cause' cannot be construed too liberally, merely because the party in default is a Government Body. The Court is to show the same consideration to the private party and the State. Liberal construction can be given to advance substantial justice when there is no negligence or inaction or bona fide is imputed.” On a similar substantial question of law framed in RSA No.2097 of 2009 (Estate Officer, Haryana Urban Development Authority, Kaithal & Ors. v. Ramesh Chand) decided on 21.5.2009, this Court held as under: “It would be seen, that though law is settled, that liberal interpretation is to be given to the sufficient cause but at the same time the limitation prescribed for filing an appeal cannot be ignored. The decision is to be taken by the court on the facts and circumstances of each case. If in view of the proposition of settled law and facts of RSA No.3890 of 2008 9 case are seen, it would show, that absolutely no detail was given as to how the delay had occurred and whether the same was justified or not. Mere assertion that the delay occurred due to administrative procedure involved cannot be said to be 'sufficient cause' to condone the delay. Exercise of discretion by the learned Lower Appellate Court in declining to condone the delay cannot be said to be perverse, which could be interfered with in regular second appeal. The appeal under Section 100 of the Code of Civil Procedure can only be filed on the substantial question of law, in case exercise of discretion by the court on facts and circumstances is perverse. It may further be noticed that the delay cannot be said to be bona fide, as in spite of dismissal of appeal on the ground of limitation this regular second appeal also was filed with an application for condonation of delay, by taking the similar stand, that the delay had occurred due to administrative procedure, involved in taking decision. The substantial question of law raised is answered against the appellants, as it is also well settled, that even if other view is possible, cannot be a ground to interfere in exercise of powers under Section 100 of the Code of Civil Procedure. It may also be seen at this stage that the facts of the present case are more peculiar as before filing the appeal before the Lower Appellate Court by the defendant-appellants, the plaintiff-respondents had RSA No.3890 of 2008 10 also challenged the judgment and decree of the trial Court and the aforesaid appeal filed by them was dismissed much prior to the filing of this appeal. The Lower Appellate Court could not have reversed its own judgment passed in the appeal filed by the plaintiff-respondents whereby judgment of the trial Court was upheld by it. In view of the aforesaid, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 1, 2010 (RAKESH KUMAR GARG) ps JUDGE