Delhi District Court
Shri Darshan Kumar Jain vs Ndpl on 9 July, 2010
IN THE COURT OF SHRI V.K. YADAV
ADDITIONAL DISTRICT JUDGE (NORTH)-04 : DELHI
RCA No. 55/09
Shri Darshan Kumar Jain ... Appellant
Versus
NDPL . ... Respondent
ORDER
The application filed by the appellant under Section 5 of Limitation Act for condonation of delay in presenting the present appeal is hereby disposed off through this Order.
In the application, it is contended by the appellant that impugned judgment and decree was passed on 29.9.2009 and the certified copy was applied by the appellant on 3.10.2009, however, the certified copy was supplied to him on 23.10.2009. It is the case of the appellant that computing the prescribed period after deducting the time spent in obtaining the certified copy, the appeal was to be filed latest by 18.11.2009 but due to the old age of the appellant and his suffering from old age diseases and he being under medical advise to take complete rest, he could not move out till 6.12.2009. But from 6.12.2009 to 10.12.2009 i.e. the day when he filed this appeal, delay has not been explained properly by the appellant for seeking CS-55/09 1 condonation under Section 5 of Limitation Act. The appellant has basically sought condonation of delay on medical ground and has placed on record the relevant medical papers.
Heard.
Section 3 of the Limitation Act states that every appeal preferred after the prescribed period of Limitation shall be dismissed. However, Section 3 is subject to Section 5 of the Limitation Act which gives discretion to the court to condone the delay even if the appeal is filed after the prescribed period subject to the condition that if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the prescribed period. Besides Section 5 of the Limitation Act, this application also attract Section 12 Sub Section 3 of Limitation Act which states that where decree is appealed from, the time requisite for obtaining the copy of its judgment shall also be excluded.
In the present case, the impugned judgment was passed on 29.9.2009 and appeal was instituted on 10.12.2009. The appellant is seeking exclusion of the time from 3.10.2009 till 23.10.2009 under Section 12 Sub Section 3 of Limitation Act, but in the report filed by the In-charge Copying Agency, it is stated that certified copy was applied on 3.10.2009 and was prepared on 14.10.2009 delivery of which was taken by the appellant on 23.10.2009. Therefore, as per record only the period from 3.10.2009 to 14.10.2009 can be excluded CS-55/09 2 under Section 12 Sub Section 3 of Limitation Act.
Though the appellant has computed this time period till 23.10.2009 and thus excluded the same in computing the prescribed period and stated that the date he was supposed to file the appeal was 18.11.2009 instead of 8.11.2009; still even if the appellant's case is accepted, the appeal filed by him does not seems to be within the period of limitation. Hence, this case is to be dealt with the aid of Section 5 of Limitation Act.
The word 'sufficient cause' appearing in Section 5 of Limitation Act should receive liberal construction. The appellant has filed his medical certificate dated 13.12.2009 in which it is certified by the doctor that for the last three months, the appellant was suffering from hypertension, angina, diabetes and asthma attacks and was even advised bed rest. He was able to move from bed on 6.12.2009 and from 6.12.2009 to 10.12.2009. each day's delay is being explained by the appellant. This court is of the view that no deliberate or gross inaction or lack of bonafide is there on the part of the appellant and he has been able to give sufficient cause for delay. It is a settled law that 'sufficient cause' must receive liberal construction. Therefore, delay in preferring the appeal is to be condoned in the interest of justice.
Therefore, in view of the above discussions and keeping in view the state of health of the appellant, the application for CS-55/09 3 condonation of delay being maintainable is allowed under Section 5 of Limitation Act and the delay is condoned in filing the appeal subject to payment of cost of Rs.1000/- to the respondent. Application stands disposed off accordingly.
Announced in open court (V.K. YADAV) on 9.7.2010 ADJ(NORTH) - 04/ DELHI CS-55/09 4 RCA No. 55/09 9.7.2010 Present :
Vide separate order dictated and announced, the application for condonation of delay being maintainable is allowed under Section 5 of Limitation Act and the delay is condoned in filing the appeal subject to payment of cost of Rs.1000/- to the respondent.
Now, to come up for arguments on merits of the appeal for 17.8.2010.
(V.K. YADAV) ADJ(NORTH) - 04/ DELHI 9.07.2010 CS-55/09 5 CS-55/09 6