Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 92 (HP)

PREM CHAND v. RUP CHAND

2000-04-26

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M. R. Verma, J. (Oral): These two applications, one under Section 5 of the Indian Limitation Act for condonation of delay in filing the appeal and another under Section 151 of the Civil Procedure Code for condonation of delay I in re-filing the same appeal after removal of objections, have been moved by » the applicant/appellant (hereafter referred to as the applicant) 2. The appellant on 20.4.1998 presented an appeal against the order dated 31.10.97 passed by a learned Single Judge of this Court dismissing the suit of the applicant under Order 17 Rule 3 of the Civil Procedure Code. The Registry, inter alia, raised the objections that (i) the memo, of appeal was not stamped and (ii) the copy of impugned order was not properly stamped and (iii) the appeal was time-barred and returned the appeal, to the applicant pursuant to the approval dated 13.5.1998 accorded by the Deputy Registrar (Judicial) to meet the aforesaid objections within a period of one week. The applicant instead of removing/meeting the objections within the prescribed time limit, refilled the appeal along with the aforesaid applications on 26.6.1999 when it was found that the memorandum of appeal was insufficiently stamped. The objection about the appeal being insufficiently stamped was finally approved by the Deputy Registrar (Judicial) on 9.7.199 and the applicant was given a weeks time to meet the objections. The appeal, therefore, was re-filed on 14.9.1999. 3. The grounds for condonation of delay in filing the appeal as averred in the application are that the applicant who is an old man, was at the relevant time confined to bed and not in a position to move and the local lawyer told him that limitation to file the appeal was 90 days. The delay in re-filing the appeal is sought to be explained on the grounds of confinement of the applicant to bed, his inability to come to Shimla repeatedly and that one Vijay Kumar was authorised to hand over the amount required for purchase of court fee on 5.5.1999. 4. The respondents have contested both the applications though have filed reply to application under Section 5 of the Limitation Act only. 5. We have heard the learned counsel for the parties and have also gone through the relevant material on the record. 6. 4. The respondents have contested both the applications though have filed reply to application under Section 5 of the Limitation Act only. 5. We have heard the learned counsel for the parties and have also gone through the relevant material on the record. 6. Under Rule 8 Chapter-II of the H.P. High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997 the maximum period for removal of objections shall be seven days at a time and 20 days in aggregate. In case the objections are not removed within the maximum period of 20 days as aforesaid, the papers are not to be received by, the Registry unless on an application of the concerned party delay in re-filing the appeal is condoned. 7. As already noticed, the applicant was given a weeks time to meet the objections on 13.5.1998 but instead of doing the needful within the time allowed, insufficiently stamped appeal was re-filed after more than a year, that is, a period much more than the maximum period of 20 days provided under the Rules. Again, the objections about the insufficiency of court fee was not met within the time allowed. The applicant neither at the time of initially filing the unstamped memorandum of appeal nor at a later stage till date moved any application to the Court to extend the time for making good the deficiency in court fee. The ground that the applicant was confined to bed during the relevant period is not substantiated by anything reliable and dependable having been brought on the record. We, thus, find that not even a reasonable cause much less sufficient cause has been shown to condone the delay in re-filing the appeal. 8. The impugned order was passed on 31.10.1997. The copy thereof was applied by the learned counsel for the applicant on 5.11.1997 and was received on 2.4.1998. The memorandum of appeal, has been prepared on 3.4.1998. However, it was presented on 20.4.1998 when the period of limitation to file appeal had already expired. The delay in filing the appeal initially is sought to be explained on the ground of confinement of the applicant to bed and advice of a local counsel that period of limitation to file the appeal was 90 days. 9. However, it was presented on 20.4.1998 when the period of limitation to file appeal had already expired. The delay in filing the appeal initially is sought to be explained on the ground of confinement of the applicant to bed and advice of a local counsel that period of limitation to file the appeal was 90 days. 9. To substantiate the ground of alleged confinement of the applicant to bed, a medical certificate dated 2.11.1997 issued by a private medical practitioner has been brought on record. This certificate prima facie shows that the applicant was ill during the period 2.11.1997 to 14.11.1997 but after 14.11.1997 he was fit to resume his duties. Therefore, this period of illness does not disclose any cause what-so- ever for delay in filing the appeal. There is no dispute that the memorandum of appeal was prepared on 3.4.1998 and initially filed on 20.4.198. There is no explanation after 3.4.1998 and what prevented its presentation immediately after 3.4.1998 and what prevented its presentation from 3.4.1998 to 19.4.1998. 10. There is nothing on the record to substantiate the ground that some local counsel had told the applicant that period of limitation to file appeal was 90 days. Neither the affidavit of such local Advocate has been filed nor his name has been disclosed. Thus, the applicant has failed to show even a reasonable cause much less a sufficient cause to condone the delay even in filing the appeal initially. From the manner in which the steps have been taken to file the appeal and to remove the objections, we are satisfied that the delay in filing as also in re-filing the appeal is the result of gross negligence on the part of the applicant. 11. Be it stated that law of limitation may harshly affect a party to the case but it has to be applied with all its rigour as provided by the statute. The Court may in exercise of powers under Section 5 of the Limitation Act condone the delay in filling application/appeal if sufficient cause therefor is shown. However, the Courts period of limitation on equitable grounds nor can the delay be condoned in a casual manner otherwise the very purpose of law of limitation will be defeated. In view of this legal position, there is no reason to condone the delay in this case. 12. However, the Courts period of limitation on equitable grounds nor can the delay be condoned in a casual manner otherwise the very purpose of law of limitation will be defeated. In view of this legal position, there is no reason to condone the delay in this case. 12. As a result both these applications merit dismissal and are accordingly dismissed. Applications Dismissed