Condonation Of Delay | Indolence Beyond A Point Results In Forfeiture Of Right To Secure Justice: Delhi High Court

In the context of condonation of delay, the Delhi High Court has observed that indolence, beyond a point, results in forfeiture of the right to secure justice.

Justice C Hari Shankar dismissed the appeal challenging the impugned order dated 30th November, 2015, which was initially challenged before the High Court after nearly three years in 2018.

The Court said that there was no explanation as to why the plea was filed in 2018 after three years of the passing of the impugned order.

"There being no reasonable explanation for the delay in preferring the present appeal, and learned Counsel being unable to assist the court in this regard, the appeal is dismissed on the ground of delay and non-prosecution," the Court said.

It added "Indolence, beyond a point, results in forfeiture of the right to secure justice. The process of the court cannot be held at ransom, awaiting the convenience of the appellant."

CM(M) 355/2018 was disposed of by an order dated 2nd April, 2018, permitting Counsel for the appellant to withdraw the petition with liberty to file a regular second appeal, if so advised in accordance with the law. Leave and liberty was granted as aforesaid and CM(M) 355/2018 was permitted to be withdrawn.

The appeal was filed on 23rd September, 2019, accompanied by an application under sec. 5 of the Limitation Act 1963, which sought to explain the delay in filing of the appeal essentially by pleading indigence.

The only explanation for the delay between 2nd April, 2018 and September, 2019 when the appeal was filed, was contained in para 12 of the application for condonation of delay. According to the said para, it was mentioned that the appellant had filed a Civil Suit but the same was dismissed with liberty to file Regular Second Appeal on 02-04-2018. It was stated that the appellant was suffering from different old age ailments and for the same reason he was not able to approach in court for signing the Regular Second Appeal.

Noting that the appellant had pleaded only the "different old age ailments", the Court said that there was not a whisper as to any specific ailment from which the appellant was suffering.

"It is relevant to note, in this context, that at the time of making the aforesaid averments, the appellant was 61 years of age, as per the affidavit filed with the application," the Court said.

It added "The indolence exhibited by the appellant does not appear to have been limited to filing of proceedings before this Court. This matter was listed on 14th October, 2019, 12th March, 2020, 6th January, 2021 and 11th November, 2021. There was no appearance on behalf of the appellant throughout."

The Court further noted that it was for the first time on the 5th date of hearing i.e. 4th January, 2022, that counsel appeared and sought an adjournment on the ground that the main counsel for the appellant was not available.

Accordingly, the Court in its order dated 4th January, 2022, noting the fact that the appeal was filed after a delay of 757 days, and after re-filing delay of 223 days and that there had been no appearance on behalf of appellant on any prior date of hearing, granted a final opportunity to the appellant to make submissions, specifically directing that the counsel for the appellant should be ready to argue the matter on the next date.

However, again the Counsel for the appellant sought an adjournment in order to obtain instructions from his client.

"It is unfortunate that, despite the tenor of the order dated 4th January, 2022, the appellant has still not deemed it appropriate to suitably instruct counsel who is appearing on his behalf today, who submits that he has been recently engaged by the appellant. Clearly, the appellant is not serious about prosecuting this matter," the Court said.

Accordingly, the appeal was dismissed.

Case Title: ANIL KUMAR v. KISHAN SARRAF & ORS

Citation: 2022 LiveLaw (Del) 394

Click Here To Read Order