RSA No.3078 of 2009 (O&M) 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3078 of 2009 (O&M) Date of decision: 26.8.2010 Estate Officer HUDA and others .....Appellants vs. Harinder Kumar .....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Sidharath Batra, Advocate, for the appellants. Mr.Sachin Gupta, Advocate, for the respondent. Rakesh Kumar Garg,J.(Oral) This judgment shall dispose of two Regular Second Appeals bearing No.3078 of 2009 and 3079 of 2009 titled as Estate Officer HUDA and others v. Harinder Kumar and Estate Officer HUDA and others v. Kamal Kumar (now deceased) respectively, as common questions of law and fact are involved in these appeals. However, the necessary facts for disposal of these appeals are being noticed from RSA No.3078 of 2009. The defendant-appellants have invoked the jurisdiction of this Court under section 100 of the Code of Civil Procedure to challenge the judgment and decrees of the Courts below. The plaintiff-respondent filed a suit for mandatory injunction directing the defendant-appellants to deliver a free hold residential developed plot under the oustee quota. The suit was contested. The trial Court decreed the suit, and the defendant-appellants were directed to allot a plot to the plaintiff-respondent according to his entitlement under HUDA RSA No.3078 of 2009 (O&M) 2 policy dated 18.3.1992. The defendant-appellants preferred an appeal against the aforesaid judgment and decree along with an application for condonation of delay. The defendant-appellants had sought the condonation of delay of 30 days in filing the appeal, on the plea that the defendant-appellants are a government body, and that there is lengthy process in getting the legal opinion and sanction from higher authorities for filing the appeal which takes a long time due to tardy process. It was the case of the defendant- appellants that the delay was neither intentional nor willful but bona fide. The application was contested by the plaintiff-respondent on the plea, that there was no explanation coming from the side of the applicants as to what at level the delay had occurred. The lower Appellate Court on consideration of the matter and without going into the question of condoning the delay in filing the appeal, disposed of the matter in view of the statement suffered by the learned counsel for the appellants which was recorded separately to the effect that a plot would be allotted to the plaintiff-respondent as per directions of the trial Court as local displaced person and directed the appellants to positively allot a plot within next six months to the plaintiff-respondent failing which the respondent was at liberty to take out the execution proceedings and the appeal was ordered to be dismissed. Thus, it is appropriate to notice at this stage that the lower Appellate Court has dismissed the appeal filed by the appellants on the basis of a statement suffered by its counsel. RSA No.3078 of 2009 (O&M) 3 Still not satisfied the appellants have approached this Court by filing the instant appeal submitting that the following substantial questions of law arises in this appeal:- 1. Whether the learned lower Appellate Court was right in dismissing the application for review when it is an admitted fact that the counsel for the appellant suffered a wrong statement without their being any instructions especially when the first appeal was dismissed in view of the statement made ? 2. Whether the plaintiff being a co-sharer is entitld to a plot under the HUDA policy and judgment passed by this Hon'ble Court in Ram Bai's case (supra) 3. Whether the non-deposit of 10 per cent earnest money disentitles the plaintiff for allotment of a plot in view of the advertisement and brochure which clearly mandates the deposit of earnest money ? 4. Whether the plaintiff is entitled to allotment of a plot without there being any application made in terms of the advertisement ? 5. Whether the jurisdiction of Civil Court is barred under Section 50(2) of the HUDA Act, 1977 ? 6. Whether the suit filed by the plaintiff was barred by limitation ? 7. Whether the courts below erred in decreeing the suit without there being a general power of attorney on record ? It is pertinent to mention that the present appeal is also accompanied by an application under section 5 of the Limitation Act for condonation of delay of 225 days in filing the appeal. The reasons given reads as follows:- 3. That the impugned order was passed on 7.10.2008 by the learned Lower Court and HUDA counsel applied for certified RSA No.3078 of 2009 (O&M) 4 copies of the judgment and decree on 14.11.2008 and the certified copy of the same was prepared on 19.11.2008 and the same was received by the HUDA counsel on 21.11.2008, but was submitted by the HUDA counsel on 21.11.2008 in the office of Estate Officer,HUDA,Kaithal vide diary No.6346 dated 21.11.2008. Thereafter, the case was processed in Estate Officer,HUDA,Kaithal and sent to the Administrator, HUDA,Panchkula vide memo No.4998 dated 2.12.2008 and 198 dated 17.12.2008 for engagement counsel from panel of advocates to fiule RSA against above said judgment & decree. 4. Thereafter Chief Administrator,HUDA (Legal Cell) Panchkula examined the case and got the order from the competent authority to file RSA and case was entrusted to Suveer Sheokand, Advocate, for preferring RSA in the High Court vide letter dated 8.1.2009 and thereafter Estate Officer collected the record from Local advocate at Kaithal and delivered the same to Sh.Suveer Sheokand Advocate on 5.3.2009, but Sh.Suveer Sheokand Advocate, did not file RSA due to the reasons best known to him. Many requests were made to Sh.Suveer Sheokand, Advocate, to file the RSA. After waiting for a long time of Sh.Suveer Sheokand Advocate, the above said RSA has to be entrusted to present counsel Sh.Sidharath Batra, Advocarte on 22.6.2009 by Chief Administrator, HUDA (Legal Cell),Panchkula vide Endst No.1243 and the necessary documents wre supplied on 22.6.2009 to Sh.Sidharath Batra, Advocate for filing of RSA. 5. That the long official procedure regarding taking the opinion for filing the RSA and the collection of records from the Estate Officer,HUDA, Kaithal and from Courts below and non filing of RSA by the earlier engaged counsel Sh.Suveer Sheokand, Advocate, in time and engaging counsel against RSA No.3078 of 2009 (O&M) 5 for filing RSA took time”. Learned counsel for the applicant-appellants in support of their application for condonation of delay has vehemently contended that the lower Appellate Court erred in law in dismissing the application for condonation of delay and thereby meritorious matter has been thrown out at the very threshold and the Court should take a liberal approach in the matter of condonation of delay and it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 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. Hon'ble Supreme Court in the case of Union of India Vs. Vidarbhavenaer Industries 1004 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. RSA No.3078 of 2009 (O&M) 6 Thus, 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 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. It may be mentioned at this stage that RSA No.2098 of 2009, which was filed along with an application for condonation of delay of 157 days on similar facts was dismissed as time barred and this Court had refused to condone the delay of 157 days vide its judgment dated 21.5.2009. Special Leave to appeal filed against the aforesaid judgment has also been dismissed by the Hon'ble Supreme Court vide its order dated 1.10.2009 passed on Special Leave to Appeal(Civil) No. 23832 of 2009. Learned counsel for the appellants could not dispute the aforesaid factual position. For the reasons mentioned above, C.M.No.9283-C of 2009 seeking condonation of delay in filing this appeal is dismissed, as no sufficient cause is made out to condone the delay of 225 days in filing the appeal. Not only this, even the appeal filed by the appellants is without any merit as the impugned judgment and decree of the lower Appellate Court has been passed on the basis of consent given by its counsel by suffering a statement made before the lower Appellate Court to the effect RSA No.3078 of 2009 (O&M) 7 that plaintiff- respondent shall be allotted a plot as per the directions of the local Court as displaced persons. In fact, the present appeal before this Court is not maintainable in view of the provisions of section 96(3) of the Code of Civil Procedure, which bars an appeal against a decree passed by the Court with the consent of parties. Not only this, under section 100 of the Code of Civil Procedure, a second appeal can be filed before this Court from any decree passed in appeal by any Court subordinate to the High Court, only if a substantial question of law arises from such judgment and decree. No substantial question of law, as submitted, can arise from the impugned judgment and decree of the lower Appellate Court, which has been passed on the consent of the appellants. Thus, the applications for condonation of delay of 225 days in filing these appeals as well as the Regular Second Appeals i.e. RSA No.3078 and 3079 of 2009, are dismissed having no merit. ( Rakesh Kumar Garg) Judge August 26, 2010 rk