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2007 DIGILAW 204 (ORI)

Bibhu Prasad Pattnaik v. Kumudini Pattnaik

2007-03-21

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : A dispute cropped up between an old mother and her son centering round a house allotted in favour of Late Sashibhusan Pattnaik, an employee under M/s. Sriram Saw Mills, Bhubaneswar - an industrial establishment. The said house, i.e., tenement No.21 was allotted in his favour by the then Housing Commissioner and Labour Commissioner during his service career and after his death on 2.10.1988, in consonance with the terms and conditions, the said building was leased out in favour of the mother. It is alleged by the petitioner that though the house was allotted in favour of the mother, all the family members were residing therein. While the matter stood thus, certain disruption cropped up between the mother, the present petitioner and his brother. Consequently, the mother filed a suit which was regis¬tered as Title Suit No.168 of 1996 in the Court of the learned Civil Judge (Junior Division), Bhubaneswar seeking a decree for permanent injunction restraining the petitioner, who is the defendant in the said case, from disturbing the peaceful posses¬sion of the mother-plaintiff. The suit was decreed on 9.1.2000. The petitioner being aggrieved by the decree filed an appeal in the Court of the District Judge, Khurda, Bhubaneswar which was registered as C.M.A. No.309 of 2005. As the appeal was not filed within the time prescribed, a petition under Section 5 of the Limitation Act was filed to condone the delay. It is pertinent to mention here that there was delay of 473 days in presenting the memorandum of appeal. In the limitation petition, explaining the delay the petitioner took the plea that he was suffering from viral Hepatitis since 29.2.2004. He recovered on 10.5.2005 and filed the appeal on 13.5.2005. In support of such plea, a medical certificate issued by a doctor was annexed. 2. On receiving notice, the opposite parties appeared and filed a counter resisting the plea taken by the petitioner-appellant. It was stated that the plaintiff was an old lady and the mother of the defendant-petitioner. Only with an avowed oblique motive of harassing her belated appeal was filed. Accord¬ing to the plaintiff, the judgment was pronounced on 23.12.2003. An application was filed for obtaining certified copy of the judgment personally by the petitioner on 9.1.2004 and the certi¬fied copy of the said judgment was obtained on the same day. Only with an avowed oblique motive of harassing her belated appeal was filed. Accord¬ing to the plaintiff, the judgment was pronounced on 23.12.2003. An application was filed for obtaining certified copy of the judgment personally by the petitioner on 9.1.2004 and the certi¬fied copy of the said judgment was obtained on the same day. After the decree was drawn up, the petitioner once again applied for certified copy of the decree on 6.2.2004 and personally ob¬tained the same on 28.2.2004. Relying upon the said fact, it was submitted that as the petitioner himself had filed the applica¬tion for obtaining the certified copy of the judgment and decree and received the copies thereof, it revealed that the petitioner was not suffering from any disease and was capable of attending the Court. 3. The trial Court after perusing the objection filed and the medical certificate produced before the Court and after discussing the facts and circumstances, by the impugned order declined to condone the delay. According to the learned appellate Court, except filing a medical certificate indicating that the petitioner was suffering from viral Hepatitis, Acid peptic dis¬ease and Malena from 19.2.2004 to 10.2.2005, no other supporting documents had been filed to prove the fact that he was undergoing prolonged treatment. Perusal of the medical certificate also re¬vealed that the same had not been issued by any Government doc¬tor. There was also no material to reveal that at any time the petitioner went to any Government Hospital. In the absence of any supporting documents, the appellate Court rightly came to the conclusion that the medical certificate could not be relied upon and basing upon it, a delay of more than one year and a half could not be condoned. 4. Learned counsel for the petitioner submits that the law of limitation is not meant to keep a person out of the Court. Rather, the Court should always make an endeavour to decide the dispute effectually to avoid multiplicity of proceedings. It is submitted that the appellate Court should have taken liberal view and condoned the delay to do substantial justice to the parties. In support of this submission, the learned counsel for the peti¬tioner relied upon the decision of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 . In support of this submission, the learned counsel for the peti¬tioner relied upon the decision of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 . The facts of the said case are, however, a little different. In the said case, delay was caused by the State in presenting the appeal. It is well known that the State functions through human agencies and for the laches of such human agencies, the State should not suffer. For granting benefits under Section 5 of the Limitation Act, the Court should always consider as to whether the delay has been caused due to bona fide reasons and/or has occasioned due to the guilt of negligence of the party. Law is well settled that a Court should be slow to condone the delay to help a party who is guilty of negligence, laches, inaction or bad faith. While con¬sidering the question as to whether the petitioner should be given the benefit of condonation of delay, the first thing which was to be considered is as to whether he acted with due care and diligence. Thus, there cannot be an iron tight jacket with regard to condonation of delay and each case is to be considered on the basis of the facts and circumstances of the said case. In the case at hand, the litigation is between an old mother and her son. That apart, the decree was passed on 23.12.2003. Thereafter, the petitioner applied for certified copy of the judgment and decree and received the same. But then, he did not file the appeal within the time prescribed. After the delay of one year and a half, he presented that appeal along with a petition for condona¬tion of delay taking the plea that he was sick. Under such cir¬cumstances, to get the equitable relief of condonation of delay, it was incumbent upon him to prove the delay by producing cogent materials and to establish the fact that the delay was not due to negligence or laches but was bona fide. The petitioner failed to discharge such onerous duty. He remained satisfied by filing a medical certificate, that too granted not by a Government doctor. He did not produce any prescription nor any receipt revealing purchase of medicines. The petitioner failed to discharge such onerous duty. He remained satisfied by filing a medical certificate, that too granted not by a Government doctor. He did not produce any prescription nor any receipt revealing purchase of medicines. The appellate Court took all these facts into consideration and on being satisfied refused to condone the delay. There is no apparent error in the decision. The conclu¬sions arrived at are cogent and in consonance with the materials available. 5. Law is well settled that while exercising certiorari jurisdiction, this Court can interfere with an order only if it is satisfied that the same is perverse and/or contrary to the materials and/or there is miscarriage of justice. The facts narrated above would clearly reveal that the order passed by the appellate Court is neither perverse nor unreasonable and this Court is therefore not inclined to condone the delay of 473 days in the given circumstances. 6. The writ application is accordingly dismissed. No costs. Application dismissed.