Gauhati High Court
Muktinath Das vs Smt. Brinda Das on 5 December, 1988
Equivalent citations: AIR 1990 GAUHATI 10
JUDGMENT R.K. Manisana, J.
1. This appeal arises from the decree of the District Judge Jorhat passed in MA No. 2 of1977 dismissing the appeal from the decree passed by the Assistant District Judge Jorhat in MS No 42 of 1971 decreeing a sum of Rs. 7,137.38 in favour of the plaintiff-respondent.
2. The first question which arises for consideration is whether the District Judge has illegally rejected the application for condonation of delay in filing the appeal. There was a delay of 12 days in fifing the appeal. After the conclusion of the argument, 31-5-78 was fixed for judgment The appellant filed an application on 29-5-78 under Section 5 of the Indian Limitation Act for condoning the delay. The lower appellate Court rejected the application on the following grounds. When the appeal was registered, it was specifically mentioned in the order sheet that the appeal was barred by limitation. Therefore, on 25-7-77, after hearing the appellant's advocate, the appeal was admitted subject to the question of limitation being kept open. Only after the argument and before the judgment, the application was filed. The alleged mistake of the lawyer could not be taken to be sufficient ground for condonation of the delay.
3. Let me now examine the instant case. In para 7 of the petition for condonation of delay it is stated :
"That the appellant's Advocate through oversight did not look into the papers carefully and was not aware if any question of limitation arises."
Para 2 of the affidavit sowrn and filed by the appellant to support the'petition runs :
"That the facts stated in paras 1, 2,3,4, 5,6 and 8 are true to my knowledge and belief and the facts stated in para 7 are true to my information and belief."
(Underlines are mine)
4. The source of information is not stated in the affidavit. The matters to which affidavit shall be confined is provided under O. 19, R. 3, CPC. Rule 3 runs as follows :
"Matters to which affidavits shall be confined.-- (1) Affidavits shall be, confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereolare stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same."
The affidavit, therefore, should be modelled on the lines of Order 19, Rule 3 and where averment is not based on personal knowledge, the source of information should be clearly deposed. The deponent has- to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. Slipshod verification of affidavit may lead to its rejection (see Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 at para 57).
5. In Government of Andhra Pradesh v. S. Prakash Rao (1982) 2 SCC 385, the Supreme Court rejected the prayer for condoning the delay as the person responsible for the delay did not put in any affidavit to support the allegations made in the petition for condoning the delay.
6. In the present case, a reading of the affidavit shows that the affidavit was verified carelessly without disclosing the source of the information and the person responsible for the delay did not put in any affidavit. Therefore, the lower appellate Court has rightly rejected the application for condoning the delay. For these reasons, the appeal before the District Judge was barred by limitation.
7. In view of the above conclusion it is not necessary to deal with the submission of Mr. J K Barua, the learned counsel for the appellant, that the suit was barred by res judicata. Accordingly, the appeal is dismissed. No costs.