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. 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. after the date which the Joint Registrar had fixed for the application being posted for hearing before the Court. Secondly, despite order of the Joint Registrar dated 9th January, 1996, the objection was removed only on 4th March, 1996 i.e. The casual approach of the counsel is evident as no timely efforts were made firstly to find out after filing application on 19th August, 1995 as to whether the Registry had raised any objection or not. On the facts of the case, the effect of negligence or 'casual approach', which would be appropriate term to be used here, of the counsel on his client, does not deserve to be so rigorous so as to deny condensation of delay in refiling the application. Considering however, the nature of the objections, it was a matter of removal of the objections by the counsel and on the facts of the present case, it is difficult in this case to attribute any negligence to the party. It is no doubt true that the CS(COMM) 22/2018 of 5 counsel for the appellant had not been very diligent after filing of application for leave to defend on 19th August, 1995 as counsel did not check whether the application was lying in the Registry with any objection or not. In the present case, the initial delay of 7 days in filing the application for leave to defend stood condoned and that has not been challenged by any of the parties. Associated Builders and others AIR 1978 S Cģ35. The delay in refiling is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act (See Indian Statistical Institute Vs. 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. Birla VXL Ltd., 1998 (3)RCR (Civil) 436 where the court held as follows:-Ĩ.
Reference in this context may be had to the judgment of the Division Bench of this court in S.R. It is settled legal position that delay in re-filing has to be considered on a different footing. It is admitted fact that the defendants have filed the written statement on after being served on. & Anr., 2015 (X) AD Delhi 378 to contend that re-filing would tentamount to fresh filing and delay cannot be condoned.Ĥ. He relies upon the judgment of the Division Bench of this court in Northern Railway vs.
He submits that re-filing tentamounts to fresh filing. Learned counsel appearing for the appellant has opposed the appeal. She relies upon the order of the learned Joint Registrar passed on where it is noted that the written statement has been filed but has been returned under office objection.ģ. within 120 days but there was delay in re-filing the same. Learned counsel for the appellant submits that the written statement was filed within time i.e. This appeal is filed against the order dated whereby the right of the defendants to file the written statement was closed as 120 days CS(COMM) 22/2018 of 5 prescribed in CPC for filing the written statement have expired.Ģ. For the reasons stated in the application, the delay is condoned. It is pleaded in the application that the delay took placed due to some serious issues being faced by the counsel for the appellant on her personal front.
17120/2018 By this application, the appellant seeks condonation of delay in filing the accompanying appeal.