Delhi District Court
Sh. K.C. Khanna vs Sh. Satish Miglani Son Of on 27 February, 2007
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IN THE COURT OF SHRI D.C.ANAND
ADDL.DISTRICT JUDGE:DELHI.
RCA-33/05
Ms. Seema Kumar w/o Shri Gurdev Kumar
resident of F-437-A, New Rajender Nagar,
New Delhi through her G.P.A
Sh. K.C. Khanna
.......... appellant
vs.
Sh. Satish Miglani son of
Shri Ram Lal Miglani, resident of
C-105, Second Floor, New Rajender
Nagar, New Delhi
also at: Prop. Brite Guest House,
Paharganj, New Delhi
......... respondent
ORDER
1. This order shall dispose of application filed 2 under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal against the impugned judgment and decree dt. 16-5-2005 whereby suit of the plaintiff was dismissed as without any merit. The appeal was filed on 23-8- 05 on the basis of certified copy of the impugned judgment and decree which was applied on 2-7- 05 and was delivered on 7-7-05 to the appellant. The appellant prayed for condonation of delay in filing the appeal on the ground that suit was contested by Shri K.C. Khanna on behalf of the appellant being her attorney who is also 82 years old and was not well. He had to undergo a surgery at Jessa Ram Hospital and remained admitted from 5-6-05 to 9-6-05. Thereafter, he kept on visiting the hospital and vide medical prescriptions dt. 25-7-05, advised complete rest 3 for three weeks. The attorney holder could contact the counsel who filed the appeal only on 16-8-05 after drafting the same.
2. The application is contested as the appeal is hopelessly barred by time of which no explanation given in the application. It is also denied that Shri K.C. Khanna was the attorney of the appellant or was not well or was admitted in the hospital or was advised rest for three weeks. The respondent also stated that limitation once began, no such disability or inability to institute the appeal stops it. The application as such does not show sufficient cause and the appeal is likely to be dismissed as filed after the prescribed period of limitation. The respondent also submitted that appeal has been filed after the period of limitation 4 intentionally as the appellant was watching the fate of the complaint filed against him for forgery and perjury committed by them in the suit against which appeal has been filed where the matter is pending for 24-7-06.
3. There is substance in the submissions by Learned counsel for respondent that for condonation of period of limitation for filing the appeal the appellant is not entitled as application for the purpose does not lie under Section 5 of the Limitation Act. It is submitted that for the condonation of the period, the period from date of impugned judgment and decree and till filing of the application for obtaining certified copy of the same has to be included and not to be excluded in reckoning the period of limitation. The certified copy of the judgment on 5 which basis appeal has been filed was applied for on opening of the courts on 2-7-05 after summer vacations. As such, it is admitted that appellant did not apply for the certified copy of the impugned judgment and decree till 2-7-05. It has been so laid down by their Lordship in case of Kanhaiyalal v Ram Kishan and others reported in AIR 1966 Madhya Pradesh 340, United Commercial Bank v M.C. Shaw Bonded Warehouse and others reported in AIR 1985, Calcutta 445, Bansi Dhar and another v Firm Bajrang Lal Mahabir Pershad and others reported in AIR 1976 Delhi 107 that in case limitation period expired on a day in vacation, that vacation period cannot be excluded for computation and the appellant is not entitled to benefit of deducting time 6 requisite for obtaining certified copy under Section 12(2) of the Limitation Act. Considering the observations in case of Jahar Mal v G.M. Pritchard reported in AIR 1919 Patna 503, no indulgence ought to be shown to a party who so puts off taking action, if by an unexpected accident he exceeds the time limit under Section 5 of the Limitation Act. Also considering the observations of their Lordship in case of S.M. Ally v Maung San Nyein reported in AIR 1936 Rangoon 183, this court is of the view that appellant was not able to plead sufficient cause on account of sickness so as to condone delay under Section 5 of the Limitation Act as the sickness was having no effect in filing the appeal by the appellant till 25-7-05 after his discharge from the hospital on 9-6-05 who had 7 been visiting the hospital admittedly but did not bother to file the appeal. The observations of their Lordship in case of Ramlal and others v Rewa Coalfields Limited reported in 1962 S.C 361 are very material in the given facts as their Lordship observed that:
"court cannot justify an enquiry as to why the party was sitting idle during all the time available to it while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant."
4. To counter the submissions, learned counsel for appellant relied upon the judgment in case of Jivanmal Jethamal v Mohmad Aliabdulla Trust and Trustees; 1. Asgarali Ragu 8 husain Mulla and another reported in AIR 1991 Gujarat 105 which are of no help to the appellant in the given facts as in the cited authority, the certified copy of the judgment was applied only after two days of passing of the judgment/ decree. The reference made to the case of Ramlal and others v Rewa Coalfields Limited reported in AIR 1962 SC 361 is of no relevance and help to the appellant on the face of the authorities quoted above and as referred to by the respondent. With regard to observations in case of Sukedeb Barik v Panchan Barik reported in AIR 1967 Orissa 11, this court is of the view that besides the fact that no condonation of delay can be granted for applying the certified copy after the period of limitation by the appellant but also the 9 appellant is not able to show sufficient cause for filing the appeal within the period of limitation as also the appellant despite certified copy of the impugned judgment and decree ready as on 7-7- 05 and being discharged from the hospital on 9- 6-05, although kept on visiting the hospital till 25-7-05, but failed to file appeal within that period from 9-6-05 and till 25-7-05 when again he was advised three weeks complete rest. There is no explanation as to what prevented the appellant from contacting the counsel after three weeks of rest for filing the appeal at the earliest possible time as the appeal was filed only on 23- 8-05 even if the medical prescription slip dt. 25- 7-05 of which original is not filed is believed although same has been challenged by the respondent.
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5. So, on both the counts, the appeal is held to have been filed patently after the period of limitation without any sufficient cause so as to accept the condonation of delay application filed under Section 5 of the Limitation Act. The appeal is accordingly dismissed as barred by law of limitation. File be consigned to Record Room. Announced in open Court Dated:27-2-07 (D.C.Anand) Addl.District Judge, Delhi.