9911796707
TMI Blog1998 (5) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... to defend the suit has also been dismissed without going into the merits and on the basis of allegations made in the plaint, the suit has been decreed. These are the circumstances under which the defendant has filed the present appeal assailing the decision of learned Single Judge declining to condone the delay in refiling application seeking leave to defend. 2. There was also a delay of 7 days in filing the application seeking leave to defend. The appellant had filed is 3268/96 seeking condensation of said 7 days delay. This application was not opposed by counsel for the plaintiff who is respondent in this appeal. Therefore, is 3268/96 was allowed on 4th November, 1997 and initial delay of 7 days in filing leave application was condoned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1996. Further the order dated 27th February, 1996 passed by learned Single Judge shows that despite the aforesaid order of the Joint Registrar, the application for leave to defendant had not been placed on record. Again counsel for the appellant was directed to check-up and remove objection, if any, and have the same placed on record. On 27th February, 1996 the case was directed to be listed before the Joint Registrar for completion of pleadings on 20th March, 1996 and before the court on 12th April, 1996. On 20th March, 1996 the Joint Registrar noticed that the application for leave to defend was still lying under objection and it was not refiled after removal of objection despite the order dated 27th February, 1996 though reply and rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under appeal that the term 'sufficient cause' deserves to be liberally construed so as to advance substantial justice. Further there can also be no dispute regarding the observation of learned Single Judge that mere raising of plea that the delay in taking some action occurred unwittingly despite efforts to avoid it, cannot be accepted as such to constitute sufficient cause and such a plea has to be tested on facts. One factor has however, to be kept in view in this appeal that the delay which was declined to be condoned was in refiling the application for leave to defend as initial delay of one week, as noticed hereinbefore, had already been condoned. Therefore, the initial filing of the application for leave to defend h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. (3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Assistant Registrar, In-charge of the filing counter, under sub-rule (1) it shall be considered as fresh institution." Note - The provisions contained in Rule 5 (1), 5(2) and 5(3) shall mutates mutants apply to all matters, whether civil or criminal. 6. The contention of learned counsel for the appellant is that a bare reading of the aforesaid Rule would show that it applies to appellate, civil and criminal matters and has no application to the matters covered by Delhi High Court (Original Side) Rules, 1967. The further contention of Mr. Gupta is that the return and refiling of the plaint, petition, application or proceedings of the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta is that the refiling of the application for leave to defend would be governed by aforesaid Rule 2 and refiling to such a document does not amount to fresh institution as aforesaid Rule in Vol. 5 of High Court Rules and Orders has no applicability to the matters on the Original Side of this Court. For the view, we are taking on merits of the facts of the present case, it is not necessary to decide the contention urged by Mr. Gupta. 8. Notwithstanding which of the aforesaid Rules are applicable, the question of condensation of delay in refiling of an application has to be considered from a different angle and viewpoint as compared to consideration of condensation of delay in initial filing. The delay in refiling is not subject to the rigo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication being posted for hearing before the Court. When the application was refiled on 4th March, 1996, one would expect the person filing to be more careful thereby not giving an opportunity to the Registry to raise any other objection. But that was no so. The result was that the second objection was raised which, as noticed above, was removed on 21st March, 1996 but application was refiled only on 27th March, 1996. Apart from this casual approach, we do not find any mala fide intention on the part of the appellant to delay the proceedings. When there is negligence or causal approach in a matter like this in refiling of an application, though the court may not be powerless to reject an application seeking condensation and may decline to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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