Full Judgment
Second Appeal No.1004 / 1998 (Ram Sajeevan & others ..Vs.Ram Dayal Patel) 02-01-2013 Shri S.K.Dwivedi, learned counsel for the appellants.
Shri K.K.Gautam, learned counsel for the respondent.
This appeal has been filed by the appellants being aggrieved by the judgment and decree dated 30-9-1998 passed by the 3rd Additional District Judge, Satna in C.A.No.03(A)/98, by which the judgment and decree dated 21-9-1996, passed by the Civil Judge Class I, Nagaud, District Satna, in C.S.No.55(A)/94, has been affirmed and the appeal filed by the appellants has been dismissed on the ground that it is barred by limitation by nine days.
The learned counsel appearing for the appellants submits that following substantial questions of law arise for adjudication in the appeal :- (i) Whether on the ground of illness of the defendant duly supported by the medical certificate of the doctor and affidavit of the defendant the FiRs.Appellate Court erred in law in not holding it to be a sufficient cause for delay ?.
(ii) Whether, in the circumstances of the case the refusal to condone delay shall result in a meritorious matter being thrown out at the very threshold and cause justice being defeated ?.
(iii) Whether, the FiRs.Appellate Court failed to consider that the words sufficient cause used in the provision are wide enough and adequately elastic to enable as courts to apply the law in a meaningful manner which subserves the ends of justice and thus it cause an error of law ?.
(iv) Whether considering the dictum of the Supreme Court that “insistence upon explaining every test delay by Court would be improper as such adoption of strict standard of proof leads to grave miscarriage of justice, the fiRs.Appellate Court committed an error of law in not condoking the delay of 9 days.
AIR 199.Supreme Court 250.
(v) Whether the FiRs.Appellate Court erred in dismissing the appeal as time barred without holding an inquiry and giving opportunity to the appellant to lead evidence in support of their application under section 5 of the Limitation Act ?.
(vi) Whether, an inference of sufficient cause for delay can be drawn in favour of the appellant ?.
(vii) Whether the defendant could be penalised for dereliction of his counsel in not supplying the certified copy of the judgment without their being any reason ?.
It is submitted that the suit which was filed by the plaintiff/respondent for possession and demolition of the construction made by the defendants/appellants was dismissed by the trial Court by the judgment and decree dated 21-9-1996, however, the appeal against the aforesaid judgment and decree could not be filed by the appellants before the fiRs.appellate Court in time as the appellant was bed ridden from 19-9-1996 to 23-10-1996 in respect of which he had also produced a medical certificate before the trial Court.
It is further stated that as the original application and the certified copy that had been obtained by his counsel was not given to him, he had filed a fresh application for obtaining the certified copy of the judgment and decree of the trial Court on 24-10-1996.
It is further averred that the appellant having received the certified copy of the judgment and decree of the trial Court on 28-10-1996 immediately filed the appeal before the fiRs.appellate Court on 30-10-1996 but the same has been dismissed by the impugned judgment and decree by holding that the appellant failed to establish reasonable cause and justification for the delay of nine days in filing the appeal and was unable to give explanation for each day's delay in filing the appeal.
It is submitted that in view of the decision of the Supreme Court rendered in the case of Special Tahsildar, Land Acquisition, Kerala v.
K.V.Ayisumma, AIR 199.SC 2750.the Court should have accepted the explanation of the appellants and should not have dismissed the appeal filed by the appellants only on the ground of delay and should have decided the same on merits.
It is submitted that the dismissal of the appeal filed by the appellants is contrary to law and deserves to be set aside.
The learned counsel appearing for the respondent, per contra, vehemently opposes the submissions of the learned counsel for the appellants and submits that the fiRs.appellate Court has rightly dismissed the appeal filed by the appellants as he has failed to give explanation for the day to day delay and he cannot be exempted from giving such an explanation only on the ground of filing a medical certificate.
I have heard the learned counsel for the parties at length and perused the record.
From a perusal of the impugned judgment and decree it is clear that the Court below has not accepted the explanation of the appellants in filing the appeal after nine days of the prescribed period of limitation.
It is also clear that though the appellant had filed a medical certificate to indicate that he was sick from 9-9-1996 to 23-10-1996 and had also filed documents to indicate that immediately thereafter he had filed an application for obtaining a certified copy which was given to him on 28-10-1996 but the Court below has held that there is no explanation on the part of the appellants as to what was he doing during the period of his sickness and as to why did he not take steps against the advocate who failed to provide him with a copy of the judgment and decree of the trial Court obtained by him to be filed before the fiRs.appellate Court.
Having perused the impugned judgment and decree and looking to the fact that it is settled law that the Court should not take a hyper-technical view in cases involving condonation of delay especially when the delay is of a very short period of time, as in the present case where the delay is only of nine days and as I am also of the considered opinion that the appellant having furnished the medical certificate as well as an explanation for filing a fresh application for certified copy on 24-10-1996 which was obtained on 28-10-1996, he has shown sufficient cause for condonation of delay in filing the appeal, therefore, the Court below has erred in not condoning the delay.
In the circumstances, the judgment and decree dated 30-9-1998 passed by the 3rd additional District Judge, Satna, in C.A.No.03(A)/98 is hereby set aside and the matter is remanded back to the fiRs.appellate Court for decision of the appeal on merits.
The appeal filed by the appellants is accordingly allowed.
There shall be no order as to costs.
(R.S.Jha) Judge mct