Calcutta High Court (Appellete Side)
Sri Anil Kumar Jana vs Sri Anil Kumar Patra & Ors on 27 November, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 27.11.2019
suman 44 Ct.17 S.A.T. 501 of 2018 With CAN 1245 of 2019 Sri Anil Kumar Jana Vs. Sri Anil Kumar Patra & Ors.
Mr. Priyabrata Ghosh ...for the petitioner Affidavit of service be kept with the record. It appears from the affidavit of service that the notice of the instant application was duly served upon the opposite parties. However, the opposite parties prefer to remain absent when the matter is called on for hearing. Therefore, this application is taken up for hearing in presence of the learned advocate for the petitioner.
This is an application under Section 5 of the Limitation Act for condonation of delay of 169 days in preferring the instant appeal. It is stated by the petitioner that the petitioner is aged about 85 years and he is suffering from acute neurological disease since prior 2017. He is under treatment of neurologist at Peerless Hospital Research Limited. Therefore, he is not in a position to take proper step 2 in the suit or appeal. The petitioner entrusted his son to look after the instant proceeding. Since the son of the petitioner is a Government employee and is engaged in his service, there was some delay for procurement of the impugned judgement and decree as well as papers and documents from the learned advocate who represented the petitioner in the Lower Appellate Court. In this process delay was caused in preferring the instant appeal.
I have heard learned advocate for the petitioner. I have also considered the averment made by the petitioner in the instant application. The petitioner has filed medical papers in support of his claim of illness.
Considering the averment made in the application as well as the documents filed by the petitioner in support of his case, this Court is of the view that the petitioner has been able to establish sufficient cause which prevented him from preferring the appeal within statutory period of limitation.
For the reasons stated above, the instant application is allowed, however, without costs. Delay in preferring the appeal is condoned. The Memorandum of Appeal be placed before the Hon'ble Division Bench for hearing on the point of 3 admission of the appeal under Order XLI Rule 11 of the Code of Civil Procedure.
(Bibek Chaudhuri, J.)