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Himachal Pradesh High Court · body

2000 DIGILAW 198 (HP)

RAMAN KUMAR v. BHUPENDER LAL KAUSHAL

2000-07-31

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This is appellant/defendants (hereafter referred to as the defendant) application for condonation of delay in filing the appeal. The material facts are that the suit of the respondent-plaintiff (hereafter referred to as the plaintiff) for recovery of Rs. 65,000/- from the defendant and defendant-respondent No. 2 (hereafter referred to as defendant No. 2) was dismissed by the learned Senior Sub-Judge, Shimla vide judgment and decree dated 19.7.1994. In appeal, the learned District Judge, Shimla vide his judgment and decree dated 1.12.1998 partly allowed the appeal and passed a decree for Rs. 30,120.65 with proportionate costs and future interest @ 12% per annum in favour of the plaintiff and against the defendant though the claim against defendant No. 2 was dismissed. The defendant has filed an appeal against the said judgment and decree of the District Judge which is time barred. Hence the application for condonation of delay in filing the second appeal. 2. It is averred in the application that the son of the plaintiff has been suffering from acute lymphublastic levimia and has been regularly getting treatment at Post Graduate Institute of Medical Education and Research (PGI), Chandigarh and it was due to the said serious ailment of his son that the defendant could not contact his counsel at Shimla and since because of such illness, he remained out of his place of business, therefore, even his counsel could not contact him on telephone which resulted in delay in filing the appeal. With the application, some photo copies of the medical papers relating to the alleged ailment of the son of the defendant have been annexed. 3. The application has been resisted for the plaintiff on the ground that as per the treatment record of the son of the defendant enclosed with the application, his son remained indoor patient in PGI, Chandigarh during the period 13.11.1997 to 29.11.1997 when he was discharged and thereafter he was examined in PGI, Chandigarh on 23.10.1998, 12.2.1999, 26.3.1999 and 7.5.1999 and thus, the admission period aforesaid and the dates of visit to and check up of his son at Chandigarh does not disclose any reasonable or satisfactory reason for delay in filing the appeal. 4. I have heard the learned counsel for the parties and have also gone through the material documents. 5. The judgment and decree sought to be appealed against are dated 1.12.1998. 4. I have heard the learned counsel for the parties and have also gone through the material documents. 5. The judgment and decree sought to be appealed against are dated 1.12.1998. There is no dispute that the defendant applied for supply of the copy of the judgment and decree aforesaid on 17.3.1999. The copy was ready for delivery on 23.3.1999 and the delivery thereof was taken on 24.3.1999. The appeal was filed in the Registry on 9.6.1999. As rightly pointed out in the reply of the plaintiff, the son of the defendant remained admitted in PGI for treatment during the period 13.11.1997 to 29.11.1997 which has no relevance so far as filing of the appeal is concerned because at that time the decree sought to be appealed against was non-existent. As per the enclosed photo copies of the prescription slips, the son of the petitioner appears to have been examined in PGI on 23.10.1998 for which date advise for re-visiting was given. This date has also no relevance in explaining the delay in filing the appeal as it is prior to the date of passing of the judgment and the decree in question. During the material period i.e. after the passing of the judgment and decree sought to be appealed against, as per the said prescription slips, the son of the defendant was taken to Chandigarh on 12.2.1999, 26.3.1999 and 7.5.1999. The slips, in no way, can be read to mean that the defendant remained out of the place of his business right from 1.12.1998 till the date application for supply of copy was made on 17.3.1999. Similarly, these documents cannot be read to mean that after the receipt of the copies of judgment and decree on 24.3.1999, the defendant remained throughout out of station because of illness of his son till 29.5.1999 when he claims to have come to Shimla. It can also not be said in the facts and circumstances of the case that during the aforesaid period, defendant has none else to look after his ailing son because it is his admitted case in the application that when he came to Shimla on 29.5.1999, he had left his ailing son in the care of his wife. It can also not be said in the facts and circumstances of the case that during the aforesaid period, defendant has none else to look after his ailing son because it is his admitted case in the application that when he came to Shimla on 29.5.1999, he had left his ailing son in the care of his wife. Thus, during the period 1.12.1998, the date of the judgment and decree of the District Judge to 9.6.1999, the date of filing the appeal in the Registry, there were long intervals during which the defendant was not out of station because of ailment of his son. Even otherwise, he allegedly came to Shimla on 29.5.1999 by which time he has got all the relevant papers. Still the appeal has been filed on 9.6.1999 on the excuse that in between he has to collect certain papers from Mandi and apparently no such papers are accompanying the appeal which might have been collected by him from Mandi nor it has been specifically averred either in the application nor stated in the affidavit as to which were those papers which were collected from Mandi. 6. Even the version of the defendant that he could come to Shimla on 29.5.1999 appears to be incorrect. A perusal of the record will show that the memorandum of appeal, the leaf showing the alleged substantial questions of law, application under Order 41, Rule 5, CPC, affidavit in support of the said application, application under Section 5 of the Limitation Act and the affidavit in support thereof, all bear the initial typed date of 29.4.1999. Even in para 4 of the application under Section 5 of the Limitation Act, the initial typed date appears to be 29.4.1999. However, all these dates apparently have subsequently been changed to read as 29.5.1999. There is no explanation whatsoever how initially the date of arrival of the defendant to Shimla was given as 29.4.1999 and why other dates were similarly given and what were the real and factual circumstances under which these dates have been changed subsequently. What can be inferred from the aforesaid circumstances is that the defendant had perhaps visited Shimla on 29.4.1999 as was originally mentioned in the application under Section 5 of the Limitation Act and it was on that day that the appeal papers were prepared and the date 29.4.1999 was given thereon. What can be inferred from the aforesaid circumstances is that the defendant had perhaps visited Shimla on 29.4.1999 as was originally mentioned in the application under Section 5 of the Limitation Act and it was on that day that the appeal papers were prepared and the date 29.4.1999 was given thereon. Even on this score, the version of the defendant that he could visit Shimla only on 29.5.1999 because of illness of his son is untrustworthy, unreliable and may be a concoction. 7. In view of the above discussion and reasons, it cannot be held that the defendant has shown sufficient cause for condonation of delay. 8. Be it stated that the law of limitation though sometime harshly affects a particular party, but it has to be applied with all its rigour when the statute so provides and the Courts have no power to extend the limitation on equitable grounds. 9. As a result, this application merits dismissal and is accordingly dismissed. Application dismissed.