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1987 DIGILAW 848 (ALL)

Prabhu Nath Tiwari v. Jagat Narain Tiwari

1987-08-27

A.N.DIKSHITA

body1987
JUDGMENT A.N. Dikshita, J. - This is an application under Section 5 of the Limitation Act for condonation of delay in filing the second appeal. 2. The applicant being aggrieved by the judgment and decree of the lower appellate court dated 31.3.82 applied for obtaining certified copies of the judgment and decree on 22.4.82 which were ready on 27.4.82 and were received by him on 12.5.82. This second appeal was to be filed by 26.7.82, on which date the period of limitation was to expire. 3. This appeal was filed on 6.5.83. As the delay of more than 10 months was occasioned hence this application was under Section 5 of the Limitation Act was filed for condonation of delay. Affidavits in support of the rival contentions have been exchanged. 4. Learned counsels for the parties have been heard. The learned Counsel for the applicant Sri B.N. Tiwari has straneously urged that it was on account of the illness which prevented the applicant to prefer this appeal. He has sought reliance on medical certificate issued by Senior Surgeon, Jaunpur in support of his case. This certificate discloses that the applicant was under the treatment of Dr. R.L. Rai, Senior Civil Surgeon w.e.f. 15.5.82 to 1.5.83. I am constrained to observe about the truthfulness of this certificate and more so when it has been clearly spelt out in para 5 of the counter-affidavit that the applicant filed nomination papers to the post of Gram Panchayat membership on 7.4.82 where he successfully participated. After the declaration of the result on 7.5.82 the oath was administered on 18.8.82. It may however be pointed out that in the election of Up-Pradhan of Village Ummapur Gaon Sabha held on 18.2.83 the applicant was seconder and one Banshidhar Tiwari was declared elected. In reply to the averments as contained in para 5 of the counter-affidavit it has been stated in the rejoinder-affidavit that he does not remember anything nor he can recollect it today the events during the period of mental disorder. From the above it is clear that the certificate on which reliance has been placed does not inspire confidence. True it has to be looked into as to what prevented a person from approaching the Court within time and the sufficiency of this cause has to be considered. From the above it is clear that the certificate on which reliance has been placed does not inspire confidence. True it has to be looked into as to what prevented a person from approaching the Court within time and the sufficiency of this cause has to be considered. It is also settled that proof of sufficient cause is a condition precedent for the exercise of discretionary jurisdiction. 5. In view of the sufficient cause having not been shown it is difficult to exercise discretion in favour of the applicant. The delay apparently has not been explained in view of the fact that the medical certificate on which reliance has been placed has been found to be incredible. 6. In view of the above the application is hereby rejected.